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AN  ESSAY  i^. 

JUDICIAL  POWER 


AHD 


CNKTITC 


BEING  A  COMMENTARY 


ON 


PMISOFTiECOlimTlOnBElTEDSmES. 


By  BRINTON  COXE, 
OF  THE  Bar  of  Philadelphia. 


*'  Does  the  Constitution  express  or  imply  the  truth  that  its  jus  legum,  which  binds 
legislators  in  legislating,  also  binds  judges  in  deciding  V'—FOst,  page  113. 


PHILADELPHIA: 

KAY   AND   BROTHER 

1893. 


■s^ 


Entered  according  to  Act  of  Congress  in  the  year  1893  by 
Alexander  B.  Coxe  and  George  Harrison  Fisher, 

Executors  of  the  ,r  vd  t  Brinton  Coxe  dec'd, 
in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


^  XBH 


NOTE. 


During  his  last  illness,  Mr.  Coxe  expressed  a  wish  that  I 
should  see  this  book  through  the  press.  When  it  reached 
my  hands,  all  the  first  part  of  the  work,  including  the  37th 
chapter,  was  not  only  set  up  in  type  but  electro  typed,  and 
is,  of  course,  now  published  in  the  same  condition  in  which 
its  author  left  it.  The  remaining  portion  of  tlie  work  was 
still  in  manuscript,  and  unfortunately  not  sufiiciently  com- 
pleted to  justify  its  publication.  This  conclusion  has  only 
been  reached  after  careful  consideration,  but  has  seemed  un- 
avoidable. Some  portions  of  the  second  part  of  the  book 
were  almost  entirely  unwritten,  and  what  was  written  was 
in  parts  fragmentary,  and  plainly  not  in  the  condition  in 
which  its  author  would  have  published  it.  'Notes  and 
queries  in  the  manuscript  showed  that  he  had  in  mind 
changes  which  he  thought  ought  to  be  made,  and  these  can, 
of  course,  be  made  by  no  one  else.  This  is  greatly  to  be  re 
gretted,  and  the  work,  as  it  is  now  given  to  the  public, 
lacks  completeness  in  one  sense ;  the  purjpose  with  which 
the  author  began  it,  and  which  he  states  in  his  Introduction, 
is  not  fully  carried  out.  But  I  think  this  defect  is  more  ap- 
parent than  real,  for  the  published  portion  is  entirely  cap- 
able of  standing  by  itself,  and  contains  all  that  was  intended 
to  form  a  part  of  the  Historical  Commentary  upon  the  con- 
stitution. It  is,  of  course,  much  to  be  wished  that  the  Text- 
ual Commentary  had  been  completed  by  the  author,  in  order 
to  meet  the  views  of  those  he  refers  to  on  page  49  of  the  In- 
troduction ;  but  none  the  less  the  portion  of  the  work  which 
he  did  finish  is  complete  upon  the  subjects  which  it  treats 

of,  and  its  great  importance  can  not  be  doubted. 

(iii) 


IV  NOTE. 

In  regard  to  the  second  part  of  the  book — The  Textual 
Commentary — unfinished  though  it  is,  the  outline  of  the 
author's  purpose  is  clear  ;  he  intended  in  it  to  treat  of  the 
two  clauses  of  the  Constitution  (2.YI  and  part  of  2.  Ill) 
which  read  : 

''This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof  ;  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." 

''The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority."     ^    *    * 

These  two  clauses  Mr.  Coxe  intended  to  examine  critic- 
ally from  the  standpoint  of  historical  jurisprudence ;  and 
it  was  evidently  upon  these  "twin  texts"  and  upon  the 
reading  of  them  together,  that  he  relied  to  establish  the 
subject  matter  of  that  part  of  his  work — that  the  Constitu- 
tion contains  express  texts  providing  for  judicial  compe- 
tency to  decide  questioned  legislation  to  be  constitutional 
or  unconstitutional  and  to  hold  it  valid  or  void  accordingly. 

The  exact  line  of  his  argument  cannot  now  be  made  out 
from  his  manuscript,  and  I  greatly  fear  that  any  effort  to 
make  a  rdsume  of  it  will  fail  to  do  justice  to  what  he  had  in 
mind.  Indeed,  there  is  so  great  difficulty  in  one  j)erson's 
trying  to  fill  out  the  partially  completed  argument  of  an- 
other, and  there  are  so  certain  to  be  gaps  in  the  reasoning, 
which  the  author  would  have  been  the  first  to  see  and  to  re- 
gret, that  I  long  doubted  the  advisability  of  trying  to  for- 
mulate his  argument.  But  Mr.  Coxe  had  evidently  worked 
a  great  deal  upon  the  matter,  and,  to  some  who  have  been 


KOTE.  V 

consulted,  it  seemed  so  unfortunate  that  all  this  work  should 
go  for  naught,  that  I  have  made  the  effort.  I  am  well 
aware  that  the  sketch  is  very  imperfect,  but  I  believe  that 
the  imperfections  are  under  the  circumstances  unavoidable. 
In  the  first  place,  the  author  examined  clause  2  of  article 
yi  and  called  attention  to  the  fact  that  it  is  legislative.  It 
enacts  what  the  law  shall  be,  as  clearly  as  any  statute  ;  and 
it  must,  therefore,  bind  all  judges  and  all  public  and  private 
persons  capable  of  being  bound  ;  otherwise  it  would  not  be 
legislation.  The  fact  that  it  reads  that  the  judges  of  the 
State  courts  shall  be  bound  thereby  by  no  means  confines 
its  operation  to  those  oflScials,  but  simply  means  that  even 
they  shall  be  bound ;  and  it  was  inserted  to  avoid  evils  well 
known  in  public  affairs  at  that  time.  The  effect  aimed  at 
by  this  legislation  was  then  more  nearly  approached  by  en- 
acting that  certain  things  pointed  out  should  be  the  su- 
preme law  of  the  land,  and  in  this  connection  laws  unauthor- 
ized by  the  Constitution  were  excluded  from  this  effect  by 
the  use  of  the  technical  words  (taken  almost  verhatim  from 
Article  12  of  the  Articles  of  Confederation)  -'in  pursuance 
thereof,"*  by  which  laws  not  enacted  in  pureuance  of  the 
Constitution  were  excluded  from  the  effect  given  to  pur- 
suant laws  by  the  clause  in  question.  The  clause  was  finally 
perfected  by  the  use  of  the  words  "anything  in  the  Con- 
stitution or  Laws  of  any  State  to  the  contrary  notwith- 
standing." These  words,  also,  are  technical  and  express, 
and  are  an  instance  of  the  very  well-known  non-obstante 
clause,  the  effect  of  which  has  always  been  held  to  be  to 
derogate  to — or  to  repeal  and  make  of  no  effect — any  legis- 
lation that  comes  within  its  scope.  This  was  very  well 
known,  and  its  operation  seen  in  many  instances  familiar 

^Pursuance  and  variance  or  departure  are  well  defined  terms  in  pleading  ; 
and  in  the  Civil  law  "  variare'^  is  equally  so. 


VI  NOTE. 

to  all  in  1787  ;  and  was  applied  directly  to  colonial  laws  by 
the  statute  of  7  and  8  William  III  cap  22  (see  post,  page 
183),  by  virtue  of  which  all  colonial  laws  violating  certain 
anterior  British  statutes  were  declared  to  be  null  and  void. 
The  words  **law  of  the  land,"  contained  in  this  same  sec- 
tion have  also  a  technical  meaning,  and  are  to  be  found 
used  in  multitudes  of  instances  as  far  back  as  our  law  can 
be  traced ;  not  only  do  they  occur  in  the  Constitutions  of 
nine  States  in  1787,  but  they  extend  back  to  the  days 
of  law  latin — where  lex  terrae  is  a  frequent  and  familiar 
term — and  to  those  of  Norman  French  and  of  "la  ley  de  la 
terref  and  the  exact  equivalent  is  moreover  to  be  found  on 
the  Continent  of  Europe.  In  all  these  systems,  the  words 
had  a  distinct  meaning,  constituting  a  body  of  laws  and 
privileges,  the  right  to  which  could  only  be  lost  by  certain 
offenses,  and  which  it  was  particularly  the  duty  of  the 
judiciary  to  enforce — their  oath  of  office  required  them  to 
decide  by  it. 

The  term,  moreover,  referred  to  a  law  of  the  land  of  each 
State,  and  not  to  one  law  of  the  land  of  the  whole  Union.* 
It  existed  in  nine  State  Constitutions  at  the  time  ;  Trevett 
?).  Weeden  shows  positively  that  there  was  a  *'lawof  the 
land"  of  Rhode  Island  at  its  date;  and  the  then  New 
York  Constitution  (Article  33)  and  the  United  States  Cou- 
sin this  connection,  Mr.  Coxe  calls  attention  to  the  error  of  Mr.  Calhoun, 
in  his  debate  with  Mr.  Webster  in  the  Senate  on  February  24th,  1849.  (See 
Curtis's  Life  of  Webster,  ed.  4,  Vol.  ii,  p.  366)  : 

'*  Mr.  Calhoun  :    Then  the  simple  question  is,  does  the  Constitution  exterd 
" to  the  territories,  or  does  it  not  extend  to  them?    Why  the  Constitution 
"  interprets  itself     It  pronounces  itself  to  be  the  supreme  law  of  the  land. 
"  Mr.  Webster  :     Wluit  land  f 

"  Mr.  Calhoun  :  The  land,  the  territories  of  the  United  States  are  apart  of  the 
^^land.  It  is  the  supreme  law,  not  within  the  limits  of  the  States  of  this 
"  Union  merely,  but  wherever  the  flag  goes — wherever  our  authority  goes,  the 
"  Constitution  in  part  goes,  not  in  all  its  provisions  certainly,  but  all  its  suit- 
**  able  provisions." 


NOTE.  vii 

stitution  are  alike  (the  latter  being  evidently  taken  from 
the  former)  upon  the  subject  of  impeachment,  except  that 
the  former  provides  that  the  person  impeached  shall  be  still 
liable  to  trial  according  to  the  laws  of  the  lajid,  while  the 
United  States  Constitution  reads  *' according  to  law."  The 
words  '*of  the  land  "  were  evidently  omitted,  because  they 
could  only  refer  to  the  system  of  each  State  and  would, 
therefore,  have  been  quite  out  of  place  in  this  section  of  the 
Constitution. 

Finally,  in  the  expression  "and  the  judges  in  every  State 
shall  be  bound  thereby,"  hound  is  another  technical  and  ex- 
press word,  the  meaning  of  which  is  to  be  found  discussed 
by  writers  treating  e.  g.  of  statutes  which  Mnd  the  king  ; 
and  these  statutes  do  not  mean  that  they  bind  only  the 
king  but  that  they  bind  even  him,  as  well  as  every  one  else. 

The  clause,  therefore,  will  read  thus,  if  its  technical  terms 
are  especially  emphasized :  This  Constitution  and  the  laws 
of  the  United  States  made  in  pursuance  thereof  and  all 
treaties  made  or  which  shall  be  made  under  their  authority 
— shall  be  the  supreme  law  of  the  land;  and  the  judges  in 
every  State  shall  be  hound  thereby,  anything  in  the  Con- 
stitution or  laws  of  any  State  to  the  contrary  notwith- 
standing. By  the  adoption  of  the  Constitution,  the  Con- 
stitution itself  and  the  constitutional  laws  of  the  Union 
were  engrafted  upon  the  law  of  the  land  of  each  respective 
State  in  the  Union  as  a  part  thereof ;  and  the  conclusion  is 
therefore  express  and  unavoidable  that  it  became  the  func- 
tion of  the  State  judiciaries  to.  enforce  that  new  law  ;  they 
must  obey,  and  execute  the  legislative  derogation  of  the 
non-ohstante  clause.  It  is  peculiarly  their  function  to  de- 
cide upon  points  of  the  law  of  the  land,  and  all  questions 
arising  thereunder  are  hence  judicial  questions. 

Next,  as  to  the  express  competency  of  the  United  States 
Supreme  Court  to  do  the  same  thing,  that  is  pointed  out  by 


VUl  NOTE. 

the  clause  (2.  Ill)  upon  the  judicial  power.  The  judicial 
power  necessarily  extends  to  a  judicial  question  and  hence 
extends  to  questions  arising  under  2.YI,  which  have  been 
shown  to  be  judicial  questions.  But  clause  2.  Ill  alone 
would  not  have  that  effect ;  what  precedes  is  also  necessary 
to  it,  and  the  conclusion  is  mainly  to  be  reached  by  reading 
together  2.YI  and  2.  Ill  in  the  view  of  what  has  already 
been  shown.     To  put  them  together,  they  are  as  follows : 

The  judicial  power  (of  the  United  States)  shall  extend 
to  all  cases  in  law  and  equity  arising  under  this  Constitii- 
tion,  the  laws  of  the  United  States  and  all  treaties  made, 
or  which  shall  be  made,  under  their  authority,  (ai^d)  this 
Constitution,  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which 
shall  be  made,  under  the  authority  of  the  United  States  shall 
be  the  supreme  law  of  the  land  (in  every  State),  anything  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. 

The  Index  and  the  Table  of  Contents  have  been  prepared 
by  me  ;  the  latter  mainly  by  the  use  of  the  author's  head- 
lines. The  Table  of  Cases  was  made  by  Mr.  Adrian  van 
Helden,  who  had  rendered  valuable  assistance  to  Mr.  Coxe 
in  many  ways  during  the  preparation  of  the  book. 

William  M.  Meigs. 

216  South  Third  Street,  PhHadelphia. 


TABLE  OF  CONTENTS. 


INTRODUCTION. 

Page. 

Chapter  I.  The  subject  of  this  essay, 1 

Chapter  II.  Reasons  for  its  fresh  discussion, 6-^ 

No.  1.  Review  of  list  (in   appendix  to  131  U.  S.)  of  cases  in   which 

laws  held  unconstitutional, 7 

Nos.  2-12.  These  cases  examined, rf 

Nos.  13-14.  Cases  in  which  the  Supreme  Court  has  held  State  legisla- 
tion  federally  unconstitutional, 22" 

No.  15.  Conclusion,      

Chapter  III.  Other  reasons  for  fresh  discussion  of  the  subject, 24 

No.  1.  Jjailliard  t;.  Greenman,  and  Mr.  McMurtrie's  defense  thereof,    .  25 

No.  2.  The  doctrine  of  that  case  upon  implied  powers, 27 

Nos.  3-4.  The  rigorous  exercise  of  such  powers, 28 

No.  5.  Mr.  McMurtrie's  doctrine  of  judicial  power, 32 

No.  6.  Juilliard  r.  Greenman's  doctrine  of  legislative  power,    ....  34 

No.  7.  The  consequences  of  both  being  true, 36 

No.  8.  Review, 

Chapter  IV.  The  plan  of  this  essay, 

Nos.  1-5.  The  Historical  Commentary, ^  .  43 

Nos.  6-9.  The  Textual  Commentary, 47 

Chapter  V.  Marbury  y.  Madison, --54 

HISTORICAL  COMMENTARY. 

Part  I. 

Investigation  of  foreign  laws  on  the  judiciary's  relation  to  unconsti- 
tutional legislation,      72 

Chapter  VI.  Preliminary, 72 

Chapter  VII.  French  law  on  the  subject, 76 

Chapter  VIII.  Swiss  public  law  on  the  subject,  .   , 84 

Chapter  IX.  German  law  on  the  subject, 89 

Division  A.  Conflicts  between  the  laws  of  the  Empire  and  States,  .    .  90 

Division  B.  Conflicts  between  the  Constitution  and  laws  of  a  State,  .  94 

Division  C.  The  case  of  Garbade  v.  Bremen. 95 

Division  D.  The  case  of  K.  v.  Niedervieland, 99 

Division  E.  Observations  upon  these  cases, 102 

Division  F.  The  court  of  the  imperial  chamber  under  the  old  empire,  104 

Chapter  X.  Roman  law  on  the  subject, 105 

Division  A.  Preliminary, 106 

Division  B.  Rescripts  in  the  classic  period  of  Roman  law 106 

Division  C.  Rescripts  in  Justinian's   time, 108 

(ix; 


X  TABLE   OF   CONTENTS. 

Page. 

Division  D.  The  jus  legum  of  the  Roman  republic, 110 

Chapter  XL  The  Koman  law  on  the  subject  continued, 113 

Division  A.  Bowyer's  views  on  the  U.  S.  Constitution, 114 

Division  B.  Mandate,  and  the  delegation  of  legislative  power,  .    .    .  115 

Division  C.  Vattel's  doctrine  of  legislative  power, 118 

Chapter  XII.  The  Canon  law  on  the  subject, 121 

No.  1.  The  partition  of  power  between  Church  and  State, 122 

No.  2.  Case  in  the  Rota  Romana  in  1648, 123 

No.  3.  The  Corpus  Juris  Canonici  upon  the  subject, 127 

No.  4.  Case  in  the  Rota  Romana  in  1638, 129 

Chapter  XIII.  The  Canon  law  in  England  on  the  subject, 134 

Division  A.  The  Canon  law  in  England  before  the  Reformation,  .    .    .  135 

Division  B.  The  Constitutions  of  Clarendon, ' 137 

Division  C.  English  statutes  neld  void  as  against  the  church  ....  l43 

Division  D.  The  Prior  of  Castlaker  v.  the  Dean  of  St.  Stephens,    .    .  147 

Division  E.  Further  reflections  upon  that  case, 152 

Division  F.  Rous  v.  an  Abbot, 153 

Division  G.  The  Reformation,  and  the  restrictions  it  removed  from 

the  power  of  parliament, 160 

Chapter  XIV.  Conclusion  as  to  conflicts  between  the  laws  of  church  and 

State,   .    

Comparison  of  the  Canon  law  with  our  law  on  the  head  of  conflicts  of 

laws, 162 

Chapter  XV.  The  powers  of  parliament  before  1688, 165 

No.  1.  Acts  of  parliament  restricting  prerogative, 165 

No.  2.  The  case  of  Godden  v.  Hales, 166 

No.  3.  The  Sheriff's  case, 168 

Chapter  XVI.  The  doctrine  concerning  void  statutes, 171 

No.  1.  Blackstone's   tenth  rule, 172 

No.  2.  Coke  upon  invalid  statutes, 172 

Nos.  3-7.  Certain  early  cases  upon  the  subject, 173 

No.  8.  Coke  on  iniquum  est  aliquem  suae  rei  esse  judicem, 176 

No.  9.  Coke's  view  of  Rous  v.  an  Abbot, 176 

No.  10.  The  effect  of  his  view  in  legal  history, 177 

Chapter  XVII.  Results  of  examination  of  English  law, 178 

Chapter  XVIII.  Relation  of  acts  of  parliament  to  the  colonies  before  1776,  181 
No.  1.  The  extension  of  acts  of  parliament  to  the  colonies  and  their 

trade, 181 

No.  2.  The  statute  of  7  and  8  William  III  cap  22, 182 

No.  3.  Statutes  relating  to  stranded  ships, 183 

No.  4.  The  case  of  the  Canary  wine  trade, 184 

No.  5.  The  law  of  statutes  extending  to  the  colonies  before  1776,  .    .  184 

No.  6.  Modern  English  law  upon  the  subject, 185 

Chapter  XIX.  Legislation  for  the  colonies  by  prerogative, 187 

Division  A.  Relation  of  the  colonies  thereto, 188 

Division  B.  The  case  of  Guernsey  and  Jersey, 190 

Division  C.  The  case  of  the  island  of  Grenada, 190 


TABLE   OF   CONTENTS.  XI 

Page.  I 
Chapter  XX.  Colonial  laws  void  for  repugnancy  to  the  laws  of  England,  197-^ 

Nos.  1-3.  The  inhibition  of  repugnancy, 198 

No.  4.  The  prerogative  in  these  cases, 203 

No.  5.  The  colonial  laws,  and  their  transmission  to  the  king  in  council,    205 

No.  6.  Modus  proeedendi  as  to  them, "... 207 

No.  7.  Winthrop  v.  Lechmere, 208 

No.  8.  Whether  the  order  determining  it  was  judicial  or  not,  ....    211 
No.  9.  Appeals  to  the  king  in  council  from  Canada  since  1867,  .    .    .    213 

Chapter  XXI.  Conclusion  as  to  the  English  law, '  .    214 

Chapter  XXII.  Conclusion  as  to  foreign  laws, 216 

Part  II. 

Investigation  of  the  laws  of  certain  states  on  the  relation  of  judicial 
power  to  unconstitutional  legislation  before  and  during  the  con- 
federation, .  219 

Chapter  XXIII.  The  states  in  which  the  judiciary  claimed  the  power,  .    .  219 

Chapter  XXIV.  Rutgers  v.  Waddington, 223  ' 

Chapter  XXV.  Trevett  v.  Weeden, 234 

Chapter  XXVI.  Bayard  v.   Singleton, 248 

No.  1.  That  case  as  reported  by  Martin, 249 

No.  2.  Further  information  concerning  it,    .    .    ; 251 

No.  3.  Iredell's  letter  of  an  elector, 253 

No.  4.  Iredell's  letter  to  Spaight, 259 

No.  5.  Further  consideration  of  the  case, 263 

No.  6.  When  it  became  known  to  the  Framers'  convention, 266 

Chapter  XXVII.  The  foregoing  cases  further  considered, 267 

Chapter  XXVIII.  Conclusions  of  the  Historical  Commentary,  .....  279*** 

Part  III. 

The  historical  antecedents  of  the  constitutional  texts  concerned,  .    .    272 

Chapter  XXIX.  The  historical  antecedents  of  paragraph  2.  VI, 272 

No.  1.  Its  text, 273 

No.  2.  The  Treaty  of  Peace, 274 

Nos.  3-8.  Certain  acts  of  the  Federal  congress  concerning  it,    ...    .    274 
No.  9.  Origin  of  the  doctrine  that  a  treaty  may  be  part  of  the  law  of  the 

land  of  a  State, 284 

No.  10.  Origin  of  the  doctrine  that  a  legislature  can  not  repeal  some 

parts  of  the  law  of  the  land, 285  / 

No.  11.  The  meaning  of  the  words  "the  law  of  the  land,".    ...    287^ 

No.  12.  Origin  of  the  pursuance  clause  of  paragtaph  2.  VI, 290 

Chapter  XXX.  The  historical  antecedent  of  the  beginning  of  section  2.  Ill,  291 

ET  IV. 


Tlie  intention  of  the  FramSrsnSnthe  relation  of  judicial  power  to 

unconstitutional  legislation, 293  ^ 

Chapter  XXXI.   Preliminary, 293 


XU  TABLE   OF   CONTENTS. 

Page. 

Chapter  XXXII.  Their  intentions  as  to  the  State  courts, 298 

Nos.  1-3.  The  State  courts  and  the  confederation, 300 

Nos.  4-6.  The  confederation  as  an  obstacle  to  ratifying  the  constitu- 
tion,       302 

No.  7.  Conclusion, , 307 

Chapter  XXXIII.  Same  subject  continued, 308 

Nos.  1-3.  Conflicts  between  the  laws  of  the  Union  and  States,  .    .    .   .  310  ~- 

No.  3.  The  two  principal  plans  of  union, 311 

No.  4.  The  two  methods  proposed  for  settling  conflicts  between  Fed- 
eral and  State  laws, 312 

No.  5.  The  legislative  method, 313 

No.  6.  The  judicial  method, 313 

No.  7.  The  intention  of  the  Framers  in  adopting  the  judicial  method,  315 

No.  8.  History  of  the  proceedings  thereon, 316 

No.  9.  The  words  "law  of  the  land"  in  the  Constitution, 321 

'    Nos.  10-11.  Conclusion,  .    .    .    .    , 324 

Chapter  XXXIV.  The  Framers'  intentions  as  to  the  U.  S.  Supreme  Court,  325 

No.  1.  The  inferior  U.  S.  Courts 326 

No.  2.  Paragraph  2.  VI  was  intended  to  bind  all  courts, 327 

Nos.  3-4.  The  rejected  legislative  negative, 328 

No.'  5.  The  relation  of  paragraph  2.  VI  to  section  3.  Ill, 329 

No.  6.  History  of  the  legislative  negative  in  the  convention,  ....  331 
Chapter  XXXV.  The  Framers'  intentions  as  to  the  Supreme  Court  and 

unconstitutional  Federal  laws, 336    - 

Chapter  XXXVI.  Their  intentions  as  to  appeals  from  the  State  courts  to 

the  U.  S.  Supreme  Court, 343 

Nos.  1-2.  The  subject  as  shown  by  the  debates, 343 

No.  3.  Certain  views  of  C.  J.  Marshall, ,  348  -- 

No.  4.  The  debates  upon  this  point,    .    .    .    .• 350 

Chapter  XXXVII.  Appeals  from  the  inferior  U.  S.  courts  to  the  Supreme  ,^- 

Court,  ,    , .  355 

APPENDICES. 

Appendix  No.  1.     See  page  5.     (Incomplete), 361 

Appendix  No.  2.     Seepage  123.     Case  in  the  court  of  the  Rota  Romana  in 

1648 361 

Appendix  No.  3.  Seepage  206.  Opinion  of  Charles  R.  Hildeburn,  Esq., 
upon  the  question  whether  the  lower  counties  upon  Delaware  were  a 

transmitting  or  a  non-transmitting  colony 369 

Appendix  No.  4.     See  page  213.     Order  of  the  king  in  council,  upon  the 

appeal  ot  John  Winthrop,  against  Thomas  Lechmere,  &c.,  &c 370 

Appendix  No.  5.  Seepage  313.  The  relation  of  judicial  power  to  uncon- 
stitutional legislation  in  Canada 383 

Appendix  No.  6.     See  page  259.     Letter  of  Richard   Dobbs  Spaight  to 

James  Iredell 385 

Appendix  No.  7.     See  page  283.     The  Federal  letter,  and  the  resolutions 

of  Congress  of  April  and  March,  1787 387 


TABLE  OF  CASES. 


A.  G.  Company,  Prussian  Tax-Fisc  v., 94 

Abbot,  Rous  V.  an, 153,  164,  171,  176 

Annuity  41  (Case  in  Fitzherbert's  Abridgment), 153,  171,  170,  177 

Anonymous  Massachusetts  Case, 222 

Austria,  v.  Day,      35,  40 

Bank  of  U.  S.  v.  Deveaux, 173 

Baptist,  John  dei  Franchi  v.  Francis  Spinola, 123 

Baron  of  Frauenhofen  v.  the  Elector  of  Bavaria, 104 

Bayard  v.  Singleton,     .    .    .68,  69,  120,  220,  222,  240,  241,  248,  249,  263,  264, 

266,  271 

Bologna  (City  of),  Anthony  Ghisilardi  v., 130 

Bonham's  Case, 171,  172,  173,  174 

Borden,  Luther  v., 120,  237 

Bowman  v.  Middleton, 203 

Bremen  ^^State  of),  Garbade  v., 95,  99,  101 

Krieger  v., 102 

Brown,  Parkersburg   v., 22 

Bull,  Calder  v., 238 

Calder  v.  Bull, 238 

Campbell  v.  Hall, 187,  188,  190,  195,  196 

Case,  Bonham's, 171,  172,  173,  174 

Dutchess  of  Hamilton's, 228 

Guernsey  and  Jersey, 187,  190 

Hayburn's, 8,  11,  12,  13 

Island  of  Grenada, 190 

Josiah  Philip's, 220 

Legal  Tender,     .    .        .   2,  9,  24,  25,  26,  27,  29,  30,  34,  37,  39,  40,  43,  51 

Le  Louis's, 180 

TheSheriflTs, 168 

in  Fitzherbert's  Abridgment  (Rous  v.  an  Abbot),    .    .  153,  164,  171,  176 

(Annuity  41), 153,  171,  176,  177 

(Cessavit  42), 171,  175 

Castlaker  (Prior  of)  v.  Dean  of  St.  Stephens,         147,  151,  152,  153 

Caton,  Commonwealth  of  Virginia  v., 221 

Cessavit  42  (Case  in  Fitzherbert's  Abridgment), 171,  175 

Charming  Betsey  (The),  Murray  v., 180,  229 

Chisholm  v.  Georgia, 61,  104 

Cohens  v.  Virginia, 349,  350 

Cole  V.  La  Grange, 22 

Commonwealth  v.  Caton, 221 

(xlii) 


XIV  TABLE   OF   CASES. 

Davis,  Tennessee?' * 137,  141,  142 

Day,  Austria  v., '        .    .    35,  40 

Day  V.  Savage, 173 

Dean  of  St.  Stephen's,  Prior  of  Castlaker  r., 147,  151,  152,  153 

Deveaux,   Bank  of  U.  S.  v  , 173 

DeWitt,  U.  S.  r.,      9,  21 

Dooley  v.  Smith, 9 

Dorrance,  Vanhorne  v., 120, 

Dred  Scott  v.  Sandford, 10,  19,  20,  21 

Dutchess  of  Hamilton's  case, 228 

Dyke  Board  of  Niedervieland,  K.  v 99 

Elector  of  Bavaria,  Baron  of  Frauenhofen  v., 104 

Ex  parte,  Garland,    .       9,  21 

McCardle, 19 

Ferreira,  United  States  w., 9.  12,  20 

Fitzherbert's  Abridgement,  Case  in  (Rous  v  an  Abbot),  .    .      153,  171,  176,  177 

(Cessavit  42) 171,  175 

Fletchers.  Peck,      132 

Franchi  John  Baptist  dei  v.  Francis  Spinola, 123 

Frauenhofen  Baron  of  v.  Elector  of  Bavaria, 104 

Garbade  v,  the  State  of  Bremen 95,  99,  101 

Garland  Ex  parte, 9,  21 

Georgia,  Chisholm  v., 61,  104 

Ghisilardi  Anthony  v.  the  City  of  Bologna, 130 

Gibbons  v.  Ogden, ...  58 

Godden  v.  Hales, 165,  166,  167,  168, 169 

Gordon  v.  United  States, 9,  20 

Gotha  Municipality  of,  Imperial  Military  Fisc  v., 94 

Grant,  Stanton  and  Pope,  Georgian., 30,  64,  118 

Greenman,  Juilliard  v.,   .       .    .   2,  24,  25,  26,  27,  29,  30,  34,  37,  39,  40,  43,  51 

Grenada,  Case  of  the  Island  of, 190 

Griswold,  Hepburn  v.,         9,  21,  40 

Guernsey  and  Jersey,  Case  of, 187,  190 

Hales,  Godden  v., 165,  166,  167,  168,  169 

Hall,  Campbell  v., 187,  188,  190,  195,  196 

Hamilton,  Dutchess  of.  Case  of  the, 228 

Hardin,  Leisy  v., 23 

Hayburn's  case, .8,  11,  12,  13 

Hepburn  v.  Griswold, 9,  21,  40 

Holmes  v.  Walton, 222 

Hylton,  Ware  v., 53,  54,  68,  69,  70 

Imperial  Military  Fisc  v.  Municipality  of  Gotha, 94 

Jersey,  Case  of  Guernsey  and, 187,  190 

Johnson,  Railroad  Co.  v., 9 

Jones,  United  States  v., •       .    .  9 

Juilliard  v.  Greenman,    ...   2,  9,  24,  25,  26,  27,  29,  30,  34,  37,  39,  40,  43,  51 
K.  V.  the  Dyke  Board  of  Niedervieland, 99 


TABLE  OF  CASES.  XV 

Knox  V.  Lee, 9,  40 

Krieger  v.  the  State  of  Bremen, 102 

La  Grange,  Cole  v., 22 

Lechmere,  Winthropr., 197,208,211,212,213 

Lee,  Knox  v., 9,  40 

Legal  Tender  Case  (The),  .    .  2,  9,  24,  25,  26,  27,  29,  30,  34,  37,  39,  40,  43,  51 

Leisy  v.  Hardin, 23 

Le  Louis  Case, 180 

Loan  Association  v.  Topeka, 22 

London,  City  of,  v.  Wood, 172,  173 

Low  V.  Routledge, 186 

Luther  v.  Borden, 120,  237 

Madison,  Marbury  v.,    ^     3,  9,  14,  17,  18,  19,  32,  42,  44,  52, 

Marbury  v.  Madison,     \ 53,  54,  67,  68,  70,  101,  202,  243,  265 

Maryland,  McCulloch  v., 36 

Maryland  v.  Railroad  Co., 9 

Massachusetts  Case  (Anonymous), 222 

McCardle  Ex  Partem 19 

McCulloch  V.  Maryland,      36 

Middleton,  Bowman  v., 203 

Municipality  of  Gotha,  Imperial  Military  Fisc  v., 94 

Murray  v.  The  Charming  Betsey, 180,  229 

Niedervieland  Dyke  Board  of,  K.  v., 99 

Ogden,  Gibbons  v., 58 

Parkersburg  v.  Brown, 22 

Parkhurst  r.  the  State, 222 

Peck,  Fletchers,     .    .       132 

Philips,  Case  of  Josiah, 220 

Pope,  Stanton  and  Grant,  Georgia  v., 30,64,118 

Prior  of  Castlaker  V.  Dean  of  St.  Stephens, 147,151,152,153 

Prussian  Tax-Fisc  r.  A.  G.  Co., 94 

Railroad  Co.  v.  Johnson, 9 

Maryland  v., 9 

Rota  Romana,  Case  in  the, 123 

Rota  Romana,  Case  in  the, 130 

Rous  V.  an  Abbot, 153,  164,  171,  176 

Routledge,  Low  v., 186 

Rutgers  v.  Waddington,      59,  223,  224..  233,  267,  270,  298 

Sandford,  DredScottv.,      10,19,20,21 

Savage,  Day  v., 173 

Secretary  of  War, v., 14,16,17,18,19,20 

SheriflTs  Case, 168 

Singleton,  Bayard  v.,  .    .    .    68,  69,  120,  220,  222,  240,  241,  248,  249,  263,  264, 

266,  271 

Smith,  Dooley  v., 9 

Spinola  Francis,  John  Baptist  dei  Franchi  v., 123 

Stanton,  Grant  and  Pope,  State  of  Georgia  v.,     .   .   .   , 30,  64,  118 


XVI  TABLE  OF  OASES. 

State  of  Bremen,  Garbade  v., 95,  99,  101 

Krieger  v., 103 

Georgia  v.  Stanton,  et  al., 30,  64,  118 

State,  The  v.  Parkhurst,    , 222 

Tax-Fisc,  Prussian,  v.  A.  G.  Co.,       .....   ^ 94 

Tennessee  v.  Davis,  .    .    .  ' 137,  141, 142 

Topeka,  Loan  Association  v., 22 

Tregor's  Case, 171,  174 

Trevett  v.  Weeden,    .   .    .   119,  155,  160,  167,  177,  178,  215,  220,  222,  234,  235, 

240,  244,  264,  265.  267,  271,  288,  298. 

United  States  v.  DeWitt, 9,  21 

V.  Ferreira, 9,  13,  20 

Gordon  v., 9, 30 

V.  Jones, 9 

V.  Yale  Todd,       8,  11,  12,  13,  14,  16,  17 

V.  Burr, 4 

Bank  of  v.  Deveaux, 173 

Vanhorne  v.  Dorrance, 120 

Virginia,  Cohens  ?;.,      349,  350 

Virginia,  Commonwealth  of  v.  Caton, 221 

Waddington,  Rutgers  u, 59,  323,  234,  233,  267,  370,  298 

Walton,  Holmes  v 33S 

War,  the  Secretary  of  V— 14,16,17,18,19,30 

Ware  v.  Hylton,  53,  54,  68,  69,  70 

Weeden,  Trevett  d.,     ,    .     119,  155,  160,  167,  177,  178,  215,  230,  223,  334,  235, 

240,  244,  264,  265,  267,  271,  288,  298 

Winthrop  w.  Lechmere, 197,208,311,312,213 

Wood,  City  of  London  v., 173,  173 

Yale  Todd,  United  States  v 8,  11,  12,  13,  14,  16 


y 

INTRODUCTIOK 


CHAPTER  I. 


Of  tlie  subject   of  tbis   Bssay  and    matters    related 

tliereto. 

The  subject  of  this  Essay  is  the  relation  of  judicial  power 
to  unconstitutional  legislation  according  to  the  text  of  the 
constitution  of  the  United  States.  The  constitutional  rela- 
tion of  judicial  power  to  unconstitutional  legislation  is  to 
be  considered  in  connection  with  the  particular  texts  of 
that  instrument  bearing  thereupon.  This  Essay  is  thus  con- 
cerned with  any  legislation  conflicting  with  the  constitu- 
tion of  the  United  States,  whether  it  be  such  as  is  made  by 
Congress  or  such  as  proceeds  in  any  form  from  a  state.  It 
is  concerned  with  the  judiciary  of  the  United  States  and 
the  judiciaries  of  the  several  states,  in  so  far  as  any  of  the 
courts  and  judges  thereof  have  constitutional  relations  tp 
such  unconstitutional  legislation.  ; 

The  chief  purpose  of  the  writer  is  to  show  that  the  coni- 
stitution  of  the  United  States  contains  express  texts  provid^ 
ing  for  judicial  competency  to  decide  questioned  legislation 
to  be  constitutional  or  unconstitutional  and  to  hold  it  valid) 
or  void  accordingly. 

Subordinate  to  this  chief  purpose  are  four  others.     Tlie^ 
first  of  these  subordinate  purposes  is  to  show  that  thel 
Framers  of  the  constitution,  according*  to  the  extant  records\ 
of  their  debates  and  proceedings,  at  Philadelphia  in  1787,  ex-  I 
pressly  intended  to  provide  for  the  said  judicial  competency  \ 
as  to  such  unconstitutional  legislation.  \ 

The  second  subordinate  purpose  is  to  point  out  and  com- 
ment upon  certain  texts  in  federal  documents  older  than 
the  constitution,  which  are  historical  antecedents  of  the 
constitutional  texts  concerned. 


2  INTRODUCTIOl^. 

The  third  subordinate  purpose  is  to  examine  the  history 
[  of  the  relation  of  judicial  power  to  unconstitutional  legisla- 
\  tion  in  certain  of  the  states  before  and  during  the  confedera- 
tion, and  to  show  that  the  judicial  competency  under  discus- 
Won  is  an  American  institution  older  than  the  constitution 
of  the  United  States. 

A  fourth  subordinate  purpose  is  to  make  an  historical  in- 
vestigation of  foreign  laws  in  order  to  show  the  true  place 
of  the  judicial  competency  aforesaid  in  the  legal  history 
I  and  comparative  jurisprudence  of  Euroi)e  and  America. 
[  This  investigation  will  include  the  laws  of  certain  European 
\  states  and  unions  of  states,  and  an  examination  of  the  R-o- 
^  man  and  Canon  laws. 

The  writer' s  purposes  have  been  enumerated  in  an  order 
which  is  the  inverse  of  that  in  which  he  will  endeavour  to 
execute  them.  In  accordance  with  them,  this  Essay  will  be 
divided  into  appropriate  divisions  and  subdivisions,  besides 
the  Introduction. 

0/  the  special  reasons  for  a  new  discussion  of  the  subject. 

Discussions  of  the  whole,  or  any  part,  of  the  text  of  the 
constitution  of  the  United  States  may  be  assumed  at  any 
time  to  be  proper.  This  general  reason  makes  it  perfectly 
proper  now  to  discuss  afresh  the  subject  of  the  relation  of 
judicial  power  to  unconstitutional  legislation  according  to 
the  text  of  that  constitution.  There  are,  however,  at  the 
present  time  extraordinary  reasons  for  a  fresh  discussion  of 
the  subject.  Some  of  these  relate  to  the  judicial  history  of 
the  constitution  from  the  beginning,  and  are  concerned  with 
all  the  decisions  in  which  the  Supreme  Court  has  pronounced 
against  the  constitutionality  of  legislation.  Others  relate 
especially  to  the  recent  judicial  history  of  the  constitution 
and  are  concerned  with  but  one  decision  of  the  Supreme 
Court,  and  have  their  origin  in  it  and  the  controversy  caused 
by  it.  The  decision  here  alluded  to  is  that  made  in  the  case 
of  Juilliard  v.  Greenman,  or  more  precisely  that  part  thereof 
which  relates  to  the  constructive  powers  of  Congress.  "^ 

^  Juilliard  v.  Greenman  is  reported  in  liu  U.  S.  Reports,  421-470. 


i:n^troductio]S".  3 

The  Introduction  to  this  Essay  will  consider  both  these 
classes  of  extraordinary  reasons  for  a  fresh  discussion  of  its 
subject.  Before  doing  so,  however,  it  is  proper  to  make 
some  observations  in  further  explanation  of  the  subject  and 
in  justification  of  the  writer's  chief  purpose. 

Justificatory  and  explanatory  observations. 

The  chief  of  the  writer's  purposes  is  to  show  that  the 
constitution  of  the  United  States  provides  in  express  terms 
for  the  judiciaries  of  the  United  States  and  the  several  states 
having  the  following  competency  viz.^  a  judicial  compe- 
tency to  decide  questioned  legislation  to  be  federally  con- 
stitutional or  unconstitutional  and  to  hold  it  valid  or  void 
accordingly,  whether  it  be  made  by  Congress  or  proceed  in 
any  form  from  a  state.  Eminent  professional  authority  has 
denied  that  the  U.  S.  constitution  contains  any  express  men- 
tion or  reference  whatsoever  to  the  subject,  and  has  csite- 
gorically  asserted  that,  while  the  power  of  the  Supreme  Court 
to  declare  a  questioned  law  unconstitutional  and  void  is  cer- 
tain, it  is  also  certain  that  such  power  is  based  exclusively 
upon  implication  and  inference,  and  not  upon  the  express 
import  of  any  text  of  the  constitution. 

This  opinion  is  not  an  isolated  one.  On  the  contrary,  it 
is  a  representative  opinion.  Chief  Justice  Marshall's  deci- 
sion in  Marbury  v.  Madison  is  relied  upon  to  support  it. 
As  far  as  it  relates  to  acts  of  Congress,  at  least,  that  decision 
can  certainly  be  relied  upon  for  such  support.  As  far  as  it 
relates  to  state  laws  and  state  constitutions,  no  one  of  the 
texts,  for  which  certain  express  meanings  are  hereinafter 
asserted,  in  order  to  refute  such  an  opinion,  can  have  the  as- 
serted express  meaning  without  contradicting  or  correcting 
a  meaning  given  thereto  by  either  Marshall,  Story  or  Web- 
ster. 

The  persons  who  acquiesce  in  the  opinion  in  question  are, 
doubtless,  very  numerous. 

At  the  first  sight  it,  therefore,  may  seem  that  the  writer 
of  this  Essay  is  attempting  an  impossibility,  or  an  absurdity, 
in  seeking  to  show  that  the  constitution  contains  texts  of 


4  INTRODUCTION. 

express  import  upon  a  certain  subject,  when  others  of  its 
students  think  otherwise.  Words  which  convey  an  express 
meaning  to  one  reader  must  convey  it  to  all,  it  will  be  said; 
otherwise  the  meaning  will  not  be  an  express  one.  When 
a  writing  calls  a  spade  a  spade,  there  is  no  doubt  about  its 
express  meaning  to  all  readers.  This  is  a  very  important 
objection  and  requires  a  full  answer  at  the  threshold  of  this 
Essay. 

In  the  first  place,  it  is  observed  in  answer  that,  assuming 
the  objection  to  be  true  in  ordinary  cases,  it  is  not  true  when- 
ever a  written  document  contains  technical  terms,  whether 
those  terms  belong  to  law,  medicine,  or  any  particular 
science  or  art  whatsoever. 

The  constitution  of  the  United  States  is  written  law.  Un- 
questionably it  contains  many  technical  terms  of  law,  e.  g. 
habeas  corpus^  bill  of  attainder,  ex  post  facto,  bankruptcy, 
law  of  nations,  levying  war,  etc.  To  lawyers,  every  one  of 
these  terms  is  of  technical  import ;  and  so,  ipso  facto,  of  ex- 
press import.  All  technical  terms  in  all  sciences  and  arts 
have  an  express  import,  and,  when  used,  are  used  for  that 
very  reason.  That  the  meaning  of  technical  terms  of  the 
law  should  escape  the  understanding  of  laymen  is  not  sur- 
prising. Whether  for  good  or  evil,  the  constitution  of  the 
United  States  can  not  be  fully  and  entirely  understood  by 
minds  ignorant  of  the  science  of  the  law.  Story's  Commen- 
taries are  addressed  to  learned  readers  (ed.  1,  §  955,  ed.  2, 
§  958).  That  lawyers  should  sonietimes  ignore  or  forget  the 
true  meaning  of  technical  terms  of  the  law,  may  seem  to 
some  readers  surprising.  It  is,  however,  natural.  Lawyers 
are  especially  warned  in  a  decision  of  Chief  Justice  Marshall, 
that  the  words  ''levying  war,"  in  the  definition  of  treason 
in  section  3.  III.  constitute  an  ancient  and  technical  term 
of  law  which  must  be  understood  in  its  technical  meaning, 
although  the  natural  import  of  the  words  would  certainly 
have  admitted  of  some  latitude  of  construction,  if  the  ap- 
plication thereof  to  treason  had  for  the  first  time  been  made 
by  the  constitution.     U.  S.  v.  Burr,  4  Cranch,  page  470. 

The  errors  of  lawyers  as  to  the  express  meaning  of  the 
constitutional  text  are  not  confined  to  cases  in  which  tech- 


INTRODUCTIOlSr.  5 

nical  terms  are  used.  The  constitution  is  so-  frequently 
quoted  from  memory  that  errors  must  occur.  Certain  of 
its  readers  frequently  delude  themselves  by  imagining  that 
they  know  parts  of  its  text  by  heart,  and  therefore  fail  to 
verify  quotations.  In  the  ardour  of  composition,  inadvert- 
encies are  often  very  natural.  In  recalling  comparisons  of 
texts  in  the  constitution  and  the  confederation,  or  in  the 
constitution  and  the  original  draft  thereof,  or  in  a  part  of 
the  constitution  and  a  corresponding  statute,  errors  are 
natural  to  some  persons  at  all  times  and  to  most  persons  at 
exceptional  times.  In  a  word,  to  make  one' s  self  a  good  and 
precise  textualist  of  the  constitution  is  a  difficult  task. 
Moreover,  the  best  textualist  must  keep  in  constant  prac- 
tice or  run  the  risk  of  his  memory  deteriorating.  In  order 
that  a  commentator  upon  the  constitution  may  be  confi- 
dent that  he  has  before  his  mind  all  the  texts  relating  to  a 
given  subject  (whether  they  be  technical  terms  or  not),  he 
must  feel  that  he  is  so  well  prepared  as  to  know  and 
to  command  everything  apt,  which  is  written  in  the  whole 
text  of  the  document.  He  must  likewise  be  confident  that 
his  memory  has  not  been  too  active  and  injected  words  into 
the  constitution  which  belong  to  other  instruments.  To  be 
always  up  to  such  a  standard,  is  in  practice  difficult.  Prac- 
tically, it  demands  a  circumspection  depending  upon  the 
memory  as  well  as  the  eye.  Errors  will  be  made  even  by 
the  most  distinguished  commentators,  and  still  more  by  or- 
dinary writers. 

Many  readers  of  this  Essay  will  doubtless  assent  to  these 
remarks  because  of  their  reasonableness.  Those  who  have 
made  a  rigorous  study  of  the  constitutional  text  will  be 
able  to  reinforce  them  by  reasons  derived  from  their  own 
experience.  There  may  be  readers,  however,  who  vrill  be 
skeptical  as  to  such  errors  being  possible,  unless  in  other 
cases  similar  ones  have  been  made.  They  may  demand  ex- 
amples of  errors,  on  the  part  of  distinguished  commenta- 
tors, as  to  constitutional  texts  other  than  those  involved  in 
the  subject  of  this  Essay. 

In  the  first  appendix  to  this  Essay  will  be  found  a  collec- 


6  I]^troductio:n". 

tion  of  instances  of  actual  errors,  as  to  such  other  texts, 
which  have  been  made  by  distinguished  commentators. 

The  texts  relied  upon  by  the  writer  for  his  own  chief  pur- 
pose will,  it  is  contended,  be  proved,  in  every  case  except 
one,  to  be  technical  legal  terms,  whose  express  meanings 
have  been  inadvertently  overlooked.  In  the  excepted  case, 
no  term  merely  a  legal  one  is  used.  The  exception  is  a  word 
used  in  a  special  logical  sense,  which  can  be  so  used  on  the 
highest  kind  of  authority  in  any  branch  of  learning  what- 
soever. The  iterative  use  of  the  word  in  this  sense  by  the 
constitution  is  so  marked,  that  its  logical  and  authorita- 
tive meaning  is,  in  fact  and  in  law,  its  express  meaning  in 
the  constitution. 


CHAPTER  II. 

Of  the  reasons  for  a  fresli  discussion  of  tlie  suliject, 
livliicli  are  derived  from  tlie  judicial  liistory  of  tlie 
constitution  from  tlie  t>es:inning:  tliereof. 

No.  1.  Of  the  reasons  aforesaid^  which  will  he  considered 
in  the  form  of  a  review  of  the  final  paper  in  the  Appendix 
to  131  U.  S.  Reports. 

JVo.  2.  Of  the  cases  in  lohich  the  Supreme  Court  has  de- 
cided acts  of  Congress  to  be  uriconstltutional. 

No.  3.  Of  the  case  of  Dred  Scott  v.  Sandford. 

No.  k.  Of  Hayhurn^  s  case. 

No.  5.  Of  the  case  of  the  United  States  v.  Tale  Todd. 

No.  6.  Of  the  case  of v.  the  Secretary  of  War. 

No.  7.  Further  consideration  of  the  latter  case. 

No.  8.  Of  the  case  of  Marhury  v.  Madison. 

No.  9.  Of  the  cases  of  the  United  States  v.  Ferrelra^  and 
Gordon  v.  the  United  States. 

No.  10.  Of  the  case  of  Ex  parte  Garland. 

No.  11.  Of  the  case  of  the  United  States  v.  De  Witt. 

No.  1'2.  Of  the  foregoing  cases  in  general. 

No.  13.  Of  the  cases  in  which  the  Supreme  Court  has  de- 
cided state  legislation  of  any  sort  to  he  {federally)  uncon- 
stitutional with  a  detailed  statement  thereof. 


INTRODUCTION. 


No.  H.  Of  the  latter  class  of  cases  in  general. 
No.  15.  Conclusion  from  the  foregoing  review. 


This  chapter  will  be  devoted  to  the  first  class  of  extraor- 
dinary reasons  for  a  fresh  discussion  of  the  subject.  They 
relate  to  the  judicial  history  of  the  constitution  from  the 
beginning.  They  are  concerned  with  all  those  decisions  of 
the  Supreme  Court  in  which  it  has  pronounced  against  the 
constitutionality  of  legislation. 

No.  1. 

Of  the  reasons  aforesaid^  considered  in  the  form  of  a  review 

of  the  final  paper  in  the  Appendix  to  131  U.  S.  Reports. 

The  reasons  aforesaid  can  best  be  explained  in  a  review  of 
the  contents  of  an  important  paper  by  Mr.  Davis,  the  official 
reporter  of  the  Supreme  Court.  In  the  year  1889,  there  ap- 
peared the  131st  volume  of  the  reports  of  cases  adjudged  in 
the  Supreme  Court  of  the  United  States.  This  official  vol- 
ume contains  a  remarkable  appendix  of  some  280  pages  by 
the  reporter,  which  is  most  appropriately  published  on  the 
occasion  of  the  Supreme  Court  completing  the  first  century 
of  its  existence.  The  elaborate  papers  contained  therein  are 
of  great  value  and  interest  to  the  constitutional  law  and 
judicial  history  of  the  Union.  One  of  these  papers  relates 
to  the  subject  of  tliis  Essay.  After  describing  the  other 
contents  of  the  Appendix,  the  reporter  observes  on  page 
XVIII : 

"In  addition  to  these  papers  I  have  added,  at  the  end  of 
"the  appendix,  a  list  of  cases  in  which  statutes  or  ordi- 
"  nances  have  been  held  by  the  court  to  be  repugnant,  in 
"  whole  or  in  part,  to  the  constitution  or  laws  of  the  United 
"States.  The  period  covered  by  this  table  begins  with  2 
"  Dall.  and  ends  with  the  present  volume. 

"  It  only  remains  to  say  that  all  this  matter  has  been  laid 
"before  the  justices  of  the  court  individually;  audit  is  now 


8  INTRODUCTION. 

*' respectfully  submitted  to  the  judgment  of  the  members  of 
''our  common  profession." 

This  table  of  cases  occupies  some  twenty -two  pages  of  the 
Appendix.  It  is  divided  into  two  parts,  A.  and  B.  Part  A. 
is  a  list  of  cases  in  which  statutes  of  the  United  States  have 
been  "held  to  be  repugnant  to  the  constitution  or  laws  of 
"the  United  States,  in  whole  or  in  part,"  by  the  Supreme 
Court  of  the  United  States.  Part  B.  is  a  list  of  cases  in 
which  acts  of  states  and  territories  (including  some  or- 
dinances of  municipalities)  have  been  "held  repugnant  to 
' '  the  constitution  or  laws  of  the  United  States,  in  whole  or 
"in  part,"  by  the  Supreme  Court  of  the  United  States. 

The  mere  publication  of  such  an  important  paper  invites 
and  suggests  further  discussion.  An  examination  of  it  will 
do  more,  it  is  contended,  and  will  show  the  urgent  necessity 
of  further  discussion.  The  writer  will,  therefore,  proceed 
at  once  to  comment  upon  a  sufficient  portion  of  this  table  of 
cases,  to  establish  the  proposition  that  it  shows  that  there 
are  special  reasons  for  anew  discussion  of  the  subject  of  the 
exercise  of  judicial  power  in  decisions  concerning  legislation 
questioned  as  unconstitutional  according  to  the  constitution 
of  the  United  States. 

ISTo.  2. 

Of  the  cases  in  wMcTi  the  Supreme  Court  has  decided  acts 
of  Congress  to  he  unconstitutional. 

Part  A.  of  the  table  contains  twenty  cases  arranged  chron- 
ologically.    The  first  eight  are  as  follows: 

"1.  Hayhurn's  Case,  August  T.,  1792,  2  Dall.  409. 
"  Whether  the  act  of  March  23,  1792,  1  Stat.  243,  conferring 
"  upon  the  United  States  courts  jurisdiction  to  pass  upon 
"  claims  for  pensions,  was  unconstitutional,  was  not  decided 
"by  the  court;  but  the  judges  were  individually  of  that 
"opinion,  as  appears  by  a  note  to  the  case  reporting  deci- 
"sions  in  circuit  made  by  every  justice  except  Mr.  Justice 
"  Johnson.     See  United  States  y,  Todd,  No  2,  post. 

"2.  United  States  v.  Yale  Todd,  February  T.  1794,  13 
"How.  52  n.  In  this  case  the  court  held  the  act  of  March 
"23,  1792  (considered  in  Hayhurn^s  Case,  No.  1,  ante),  to 


INTRODUCTION.  9 

"be  unconstitutional,   as  attempting  to  confer  upon  the 
''court  power  which  was  not  judicial. 

"3.  Marhury  v.  Madison,  February  T.,  1803,  1  Cranch, 
''137.  The  provision  in  the  Judiciary  Act  of  1789,  c.  20, 
"  §  13,  1  Stat.  80,  81,  conferring  upon  the  Supreme  Court 
"original  jurisdiction  to  issue  writs  of  mandamus  directed 
"to  'persons  holding  office,'  is  not  warranted  by  the  con- 
' '  stitution. 

4.    United  States  v.   Ferreira,  December  T.,  1851,  13 

How.  40.     The  acts  of  March  3,  1^23,  3  Stat.  768,  c.  35 ; 

June  26,  1834,  6  Stat.   569,  c.  87 ;  and  March  3,  1849,  9 

Stat.  788,  c.  181,  confer  upon  the  District  Court  powers 
"  which  are  not  judicial,  and  they  are  therefore  void. 

"5.  Gordon  Y,  United  States,  D^G^mh^vT.,  ISM,  2  WvlW. 
"561,  sections  5,  7,  of  the  act  of  March  3,  1863,  12  Stat.  765, 
"  conferring  jurisdiction  of  appeals  from  the  court  of  claims, 

are  void.    No  reasons  are  given.     But  see,  117  U.  S.  697, 


"and  United  States  v.  Jones,  119  U.  S.  477. 


6.  Ex  parte  Garland,  December  T.,  1866,  4  Wall.  333. 
"The  act  of  January  24,  1865,  c.  20,  13  Stat.  424,  respect- 
"ing  the  oath  to  be  administered  to  attorneys  and  counsel- 
"lors  in  courts  of  the  United  States,  was  ex  post  facto,  and 
"  in  the  nature  of  a  bill  of  pains  and  penalties. 

"7.  Hepburn  v.  Griswold,  December  T.,  1864,  8  Wall. 
"603.  The  legal  tender  act  of  February  25,  1862,  c.  33,  12 
"Stat.  345;  the  joint  resolution  of  January  17,  1863,  12 
"  Stat.  822  ;  and  the  act  of  March  3,  1863,  12  Stat.  709,  so 
'  far  as  they  made  the  notes  of  the  United  States  a  legal 
"  tender  for  debts  contracted  before  their  respective  enact- 
"  ments,  were  unconstitutional.  This  ruling  was  reversed 
"in  Knox  v.  Lee,  12  Wall.  457  ;  Dooley  v.  Smith,  13  Wall. 
"  604  ;  Railroad  Co.  v.  Johnson,  15  Wall.  195  ;  Maryland 
'^v.  Railroad  Co.,  22  Wall.  105;  and  The  Legal  Tender 
''Case,  110  U.  S.  421. 

"8.  United  States  v.  De  Witt,  December  T.,  1869,  9 
"Wall.  41.  Section  29,  c.  169,  act  of  March 2, 1867,  14  Stat. 
"  484,  so  far  as  it  applies  to  the  oifence  described  by  it  when 
"committed  within  a  state,  is  in  excess  of  the  powers  con- 
"f erred  upon  Congress." 


10  INTRODUCTION. 

The  remaining  twelve  cases  of  Part  A.  are  all  dated  in 
1869  or  subsequent  years. 

ISTo.  3. 
Of  the  case  of  Dred  Scoti  v.  Sandford. 

Part  A.  is  a  remarkable  list,  both  for  what  it  contains  and 
for  what  it  does  not  contain.  The  reader  will  be  surprised 
when  he  scrutinizes  it  and  fails  to  find  the  case  of  Dred 
Scott  z.  Sandford,  which  should  have  its  place  therein  be- 
tween No.  4  and  No.  5. 

In  that  case  the  opinion  of  the  court  said,  on  page  452  of 
19  Howard : 

"  Upon  these  considerations,  it  is  the  opinion  of  the  court 
''that  the  act  of  Congress  which  prohibited  a  citizen  from 
"holding  and  owning  property  of  this  kind  in  the  territory 
' '  of  the  United  States  north  of  the  line  therein  mentioned, 
"is  not  warranted  by  the  constitution  and  is  therefore  void  ; 
"and  that  neither  Dred  Scott  himself,  nor  any  of  his  fam- 
"ily  were  made  free  by  being  carried  into  this  territory; 
' '  even  if  they  had  been  carried  there  by  the  owner,  with 
"the  intention  of  becoming  a  permanent  resident." 

That  the  Dred  Scott  case  should  have  been  omitted  in  the 
list  aforesaid,  is  a  circumstance  which  suggests  many  grave 
reflections.  Such  an  omission  in  such  a  list  is  a  fact,  which 
is,  of  itself  alone,  a  sufficient  reason  for  further  discussion 
and  investigation  of  the  relation  of  judicial  power  to  uncon- 
stitutional legislation.  If  the  Dred  Scott  decision  can  es- 
cape recollection,  anything  legal  or  historical  relating  to 
the  subject  may  be  forgotten.  Even  if  a  writer's  usefulness 
be  restricted  to  increasing  the  attention  given  to  the  subject, 
he  may  feel  that  he  has  written  something  needful. 

The  Dred  Scott  case  was  a  remarkable  one  in  many  ways, 
one  of  which  should  be  mentioned  now.  Unless  the  list  be 
still  further  defective,  the  Dred  Scott  decision  was  the  first 
in  which  an  act  of  Congress  was  decided  by  the  court  to  be 
unconstitutional  for  reasons  not  relating  to  its  own  judicial 
department  of  the  government.  In  all  the  previous  cases 
concerned.  Congress  was  decided  to  have  legislated  uncon- 


INTRODUCTION.  11 

stitutionally  concerning  the  judiciary.  In  the  Dred  Scott 
case,  the  act  of  Congress  related  to  a  subject  not  peculiar 
to  the  judicial  department,  but  affecting  every  department 
of  the  U.  S.  government,  esj^ecially  Congress  itself.  It  is 
unnecessary  to  enlarge  upon  this  distinction.  None  will 
deny  its  historical  importance,  although  aU  may  not  agree 
in  opinion  as  to  its  legal  effects. 

'No.  4. 

0/  Haybum^s  Case. 

The  first  case  on  the  list  is  Hayburn'  s  case.  As  it  was 
never  decided,  it  is  not  properly  entitled  to  a  regular  place 
and  number  in  the  list  of  cases.  It  is,  however,  useful  and 
edifying  that  it  should  be  added  thereto,  without  a  number. 
It  is  suggested  that  the  same  kind  of  addition  may  be  made 
of  the  letter  of  the  judges  of  the  Supreme  Court  to  Presi- 
dent Washington,  in  answer  to  his  letter  to  them  dated 
April  3d,  1790.  This  j^aper  is  extrajudicial,  but  quasl-offi- 
cial.  It  comments  upon  the  then  recent  act  to  establish  the 
judicial  courts  of  the  United  States,  and  says  :  **  On  com< 
"paring  this  act  with  the  constitution,  we  perceive  devia- 
''tions  which  are  important."  It  then  comments  on  these 
*' deviations,"  which  relate  specially  to  the  judicial  depart- 
ment. The  text  of  this  letter  is  found  in  Story's  Commen- 
taries, Ed.  1,  vol.  3,  §  1573,  pages  438-441. 

No.  5. 
0/  the  case  of  the  United  States  v.  Yale  Todd. 

The  second  case  on  the  list  is  that  of  the  United  States  v. 
Yale  Todd.  If  it  be  certainly  entitled  to  a  place  therein, 
it  is  remarkable  as  being  the  first  case  in  which  the  Su- 
preme Court  made  a  negative  decision  upon  the  questioned 
constitutionality  of  an  act  of  Congress.  No  written  opinion 
deciding  the  case  is  extant,  nor  is  there  any  statement  of 
the  contents  of  such  an  opinion  by  any  writer  claiming  to 
have  read  it.  The  question  whether  the  case  is  entitled  to 
be  placed  in  the  list,  is  one  which  may  be  raised  with  utility. 

The  authority  for  United  States  v.  Yale  Todd  being  a  case 


12  INTRODUCTIOIT. 

in  which  an  act  of  Congress  was  decided  unconstitutional,  is 
the  note  found  at  the  end  of  the  report  of  United  States  v. 
Ferreira,  in  13  Howard,  52,  which  was  written  by  Chief 
Justice  Taney,  and  was  inserted  in  its  place  by  the  order  of 
the  c©urt.  This  note  is  intimately  related  to  the  report  of 
Hayburn's  Case  in  2  Dallas,  409,  and  to  the  comment  there- 
upon in  13  Howard,  49,  with  both  of  which  it  must  be  con- 
sidered. 

The  case  of  United  States  v.  Yale  Todd  was  this.  The 
act  of  Congress  of  March  23d,  1792,  required  the  circuit 
courts  to  examine  and  report  upon  the  pension  claims  of  dis- 
abled officers,  soldiers,  and  seamen,  and  to  certify  their  opin- 
ions to  the  secretary  of  w^ar,  who  should  thereupon  place 
the  persons  so  certified  and  reported  upon  the  pension  list. 
The  2d,  3d,  and  4th  sections  of  the  said  act  were  repelled  as 
unconstitutional  by  the  circuit  courts,  because  the  duties 
imposed  were  not  judicial.  In  the  New  York  circuit,  how- 
ever, the  judges,  while  refusing  to  act  judicially,  agreed  to 
construe  the  act  as  conferring  on  them  power  to  act  as  com- 
missioners for  pension  claims,  and  did  act,  report  and  certify 
as  such,  in  a  number  of  cases.  The  parts  of  the  act,  which  were 
so  impeached,  were  repealed,  and  another  pension  procedure 
was  established  by  an  act  of  February  28th,  1798.  The  third 
section  of  this  act  excepted  all  rights  to  pensions,  under  the 
repealed  part  of  the  act,  that  had  been  favourably  passed 
upon  by  the  judges  acting  as  commissioners,  and  provided 
that  the  secretary  of  war  and  attorney  general  should 
take  the  necessary  measures  to  obtain  an  adjudication  of  the 
Supreme  Court  upon  the  validity  of  the  said  excepted  rights. 
In  pursuance  of  this  act,  the  amicable  action  of  the  United 
States  V.  Yale  Todd  was  brought  before  the  Supreme  Court 
in  original  jurisdiction.  It  was  an  action  upon  the  case, 
brought  to  recover  $172.91  paid  to  Todd  as  one  of  the  pen- 
sioners whose  claims  had  been  determined  by  judges  acting 
as  commissioners.  Judgment  was  rendered  by  the  court  in 
favour  of  the  United  States  for  the  above-mentioned  sum. 
While  the  record  of  the  case  is  otherwise  complete,  no  opin- 
ion is  found  on  file.  It  is  known  that  Chief  Justice  Jay  and 
four  other  judges  were  present  at  the  decision.     In  his  note, 


INTRODUCTION.  13 

Chief  Justice  Taney  thinks  that  the  oj^inion  of  the  court  must 
have  been  unanimous.  He  considers  that  Hayburn's  Case 
and  United  States  v.  Yale  Todd,  taken  together,  show  that, 
in  the  opinion  of  the  then  judges,  the  pension  power  given  to 
the  circuit  courts  was  not  judicial  power,  and,  therefore, 
was  unconstitutional,  and  could  not  be  exercised  by  the 
courts  ;  that  the  act  of  Congress  intended  to  conifer  a  judicial 
function  and  could  not  be  construed  as  an  authority  to  act 
out  of  court  as  commissioners ;  and  that  the  money  paid 
under  a  certificate  from  such  unauthorized  persons  could  be 
recovered  back  by  the  United  States. 

It  would  seem,  therefore,  that,  if  Chief  Justice  Taney  be 
correct  as  to  the  contents  of  the  opinion,  the  court  must  have 
decided  part  of  the  act  of  1792  to  be  unconstitutional  and  held 
it  therefore  void.  This  is,  however,  only  an  inference,  for 
no  opinion  is  extant.  It  seems  strange  that  no  public 
journal  should  have  published  anything  relating  to  an  opin- 
ion deciding  a  pension  act  to  be  unconstitutional.  If  such 
be  the  fact,  times  have  changed  much,  and  men  more.  At 
the  present  day,  many  i)ersons  will  deem  it  incredible  that  the 
U.  S.  Supreme  Court  should  have  rendered  its  first  negative 
decision  upon  the  constitutionality  of  an  act  of  Congress, 
and  that  act  a  pension  law,  without  a  printed  record  being 
somewhere  made  of  such  an  opinion.  Moreover,  the  judg- 
ment for  the  United  States  and  against  Yale  Todd  may,  per- 
haps, be  accounted  for  otherwise.  It  certainly  meant  that 
the  acts  of  the  judges  sitting  as  commissioners  upon  pension 
applications,  were  void.  It  is,  however,  possible,  in  the  ab- 
sence of  a  written  opinion,  to  surmise  that  the  Sujjreme 
Court  held  that  the  circuit  judges  refused  to  proceed  judic- 
ially as  a  court ;  that  they  actually  proceeded  extrajudicially 
as  commissioners  ;  that,  in  so  proceeding,  they  acted  outside 
of  the  statute  and  not  under  it ;  that  in  acting  as  commis- 
sioners, they  assumed  to  create  and  usurp  new  offices,  un- 
known to  that  or  any  other  statute  ;  and  that  their  acts  as 
commissioners  were,  therefore,  illegal  and  void.  Assuming 
this  conjecture  to  be  true,  it  follows  that  the  constitution- 
ality of  the  statute  was  not  drawn  in  question,  for  nothing 
was  done  under  it,  and  the  acts  performed  by  the  commis- 


14  INTRODUCTION^". 

sioners  were  not  authorized  by  it,  even  if  it  were  constitu- 
tional and  valid. 

If  the  weight  due  to  these  considerations  make  it  the  more 
probable  presumption  that  no  act  of  Congress  was  decided 
unconstitutional  in  the  lost  opinion  in  United  States  v.  Yale 
Todd,  then  that  case  should  not  be  inserted  in  Part  A.  of  the 
table  of  cases,  as  one  fully  entitled  to  a  place  therein. 

If,  however,  the  foregoing  considerations  have  properly 
no  such  weight,  then  the  case  of  United  States  v.  Yale  Todd 
is  entitled  to  remain  in  the  table.  This  is,  however,  by  no 
means  an  end  of  the  matter.  Another  branch  of  it  then  be- 
gins. The  question  is  immediately  raised,  whether  the  case 
of  United  States  v.  Yale  Todd  is  not  one  of  a  pair  of  pension 
cases,  in  which  the  three  sections  of  the  act  of  1792  were  de- 
cided to  be  unconstitutional.     If  an  affirmative  answer  must 

be  given  to  this  question,  the  other  case  is  that  of v. 

the  Secretary  of  War. 

No.   6. 

0/  the  case  of v.  The  Secretary  of  War. 

The  case  of v.  The  Secretary  of  War  must  now  be 

considered.  All  that  is  known  of  it  is  to  be  found  on  pages 
171  and  172  of  1  Cranch,  in  the  opinion  of  the  Supreme 
Court  in  the  case  of  Marbury  ??.  Madison  delivered  by  C.  J. 
Marshall.  On  the  previous  pages  of  the  same,  the  chief 
justice  expresses  the  opinion  of  the  court  as  to  the  cases  in 
which,  on  legal  principle  and  English  authority,  the  writ  of 
mandamus  may  issue  to  an  executive  officer.  He  immedi- 
ately adds  : 

''This  opinion  seems  not  now  for  the  first  time  to  be  taken 
''up  in  this  country. 

"It  must  be  well  recollected  that  in  1792  an  act  passed 
"directing  the  secretary  at  war  to  place  on  the  pension 
"list  such  disabled  officers  and  soldiers  as  should  be  re- 
"  ported  to  him  by  the  circuit  courts,  which  act,  so  far  as 
"the  duty  was  imposed  on  the  courts,  was  deemed  uncon- 
"  stitutional ;  but  some  of  the  judges,  thinking  that  the  law 
"might  be  executed  by  them  in  the  character  of  commis- 
"  sioners,  proceeded  to  act  and  report  in  that  character. 


INTRODUCTION.  15 

*'  This  law  being  deemed  unconstitutional  at  the  circuits, 
**  was  rei)ealed,  and  a  different  system  was  established  ;  but 
"  the  question  whether  those  persons  who  had  been  reported 
*'by  the  judges,  as  commissioners,  were  entitled,  in  conse- 
"  quence  of  that  report,  to  be  placed  on  the  pension  list, 
"  was  a  legal  question,  properly  determinable  in  the  courts, 
"although  the  act  of  placing  such  persons  on  the  list  was 
*'  to  be  performed  by  the  head  of  a  department. 

"  That  this  question  might  be  properly  settled,  Congress 
"  passed  an  act  in  February,  1793,  making  it  the  duty  of  the 
''secretary  of  war,  in  conjunction  with  the  attorney  gen- 
"  eral,  to  take  such  measures  as  might  be  necessary  to  obtain 
"an  adjudication  of  the  Supreme  Court  of  the  United 
"  States  on  the  validity  of  any  such  rights,  claimed  under 
"  the  act  aforesaid. 

"  After  the  passage  of  this  act,  a  mandamus  was  moved 
"for,  to  be  directed  to  the  secretary  of  war,  commanding 
"him  to  place  on  the  pension  list  a  person  stating  himself 
"  to  be  on  the  report  of  the  judges. 

"There  is,  therefore,  much  reason  to  believe,  that  this 
"mode  of  trying  the  legal  right  of  the  complainant,  was 
"  deemed  by  the  head  of  a  department,  and  by  the  highest 
"  law-officer  of  the  United  States,  the  most  proper  which 
"could  be  selected  for  the  purpose. 

"  When  the  subject  was  brought  before  the  court  the  de- 
"cision  was  not,  that  a  ma?7 damns  would  not  lie  to  the 
"head  of  a  department,  directing  him  to  perform  an  act 
"enjoined  by  law,  in  the  performance  of  which  an  individ- 
"ualhada  vested  interest ;  but  that  a  mandamus  ought 
"  not  to  issue  in  that  case — the  decision  necessarily  to  be 
' '  made  if  the  report  of  tlie  commissioners  did  not  confer 
"  on  the  applicant  a  legal  right. 

"  The  judgment  in  that  case  is  understood  to  have  decided 
"  the  merits  of  all  claims  of  that  description  ;  and  the  jDer- 
"  sons,  on  the  report  of  the  commissioners,  found  it  neces- 
"  sary  to  pursue  the  mode  prescribed  by  the  law  subsequent 
"to  that  which  had  been  deemed  unconstitutional,  in  order 
"to  place  themselves  on  the  pension  list. 


16  INTRODUCTION. 

"  The  doctrine,  therefore,  now  advanced  is  by  no  means 
^' a  novel  one." 

Tlie  resemblances  between  the  cases  of  United  States  ^;.  Yale 
Todd  and v.  the  Secretary  of  War  are  more  remark- 
able than  the  differences  between  them.  It  is  true,  that  one 
was  an  action  upon  the  case,  brought  against  a  person  on  the 
pension  list  to  recover  pension  money  paid  him,  and  that  the 
other  was  a  proceeding  for  a  mandamus  against  the  secretary 
of  war  moved  on  behalf  of  a  pension  claimant  to  get  a  place 
on  the  pension  list.  On  the  other  hand,  both  litigations 
were  pension  cases  that  were  adjudications  of  the  Supreme 
Court  in  original  jurisdiction.  Both  were  adjudications  di- 
rected to  be  obtained  by  the  third  section  of  the  act  of  28 
February,  1793.  In  both,  the  decision  was  against  the  val- 
idity of  rights  to  pensions  that  had  been  detennined  favour- 
ably by  the  circuit  court  judges  acting  as  commissioners. 
The  opinions  of  the  Supreme  Court  in  both  cases  are  not  ex- 
tant. Inference  and  tradition  are  the  only  possible  sources 
of  knowledge  as  to  the  contents  of  both  opinions.  Conse- 
quently, if  it  be  supposed  true  that  in  the  case  of  United  States 
V.  Yale  Todd  the  court  decided  the  three  sections  of  the  act 
of  1792  to  be  unconstitutional,  there  is  great  reason  to  pre- 
sume that  it  did  likewise  in  the  case  of v.  the  Secre- 
tary of  War.  Therefore,  if  the  first  case  be  supposed  prop- 
erly inserted  in  Part  A.  of  the  table  of  cases  under  considera- 
tion, the  second  case  ought  also  to  be  inserted  therein. 

It  will  be  observed  that  Chief  Justice  Marshall  says  noth- 
ing one  way  or  other,  as  to  the  act  of  Congress  being  decided 

unconstitutional  in v.  the  Secretary  of  War.     If  this 

silence  be  deemed  an  argument  against  any  such  question 
being  decided  therein,  it  must  also  be  taken  as  militating 
against  the  same  question  being  decided  in  the  lost  opinion 
in  United  States  v.  Yale  Todd.  It  is  a  two  edged  sword 
and  militates  against  both  cases  being  admitted  in  Part  A. 
of  the  table.  The  conclusion  that  both  cases  should  be  ad- 
mitted or  both  excluded  is,  therefore,  the  most  reasonable 
one,  provided  both  cases,  actually  existed. 


INTRODUCTION.  17 


No,  7. 

Further  consideration  of  the  case  of  v.  the  Secre- 
tary of  War. 

This  proviso,  however,  is  a  very  grave  one  and  raises  the 

question  whether  the  case v.  the  Secretary  of  War 

ever  existed. 

The  case  of  United  States  n.  Yale  Todd  certainly  existed. 
The  records  of  the  court  adduced  by  Chief  Justice  Taney 
prove  this  proposition.  Only  the  contents  of  the  lost  opin- 
ion can  be  questioned.  The  judgment  is  duly  recorded. 
On  the  other  hand,  recollection  or  tradition  is  all  the  evi- 
dence that  Chief  Justice  Marshall  adduces  for  the  existence 

of  the  case  of v.  the  Secretary  of  War.     Doubts  must 

suggest  themselves  affecting  the  correctness  of  the  tradition 
detailed,  and   raising  the  question  whether  the  case  of 

^.  the  Secretary  of  War  be  not  apocryphal.     It  may 

be  that  these  doubts  can  only  be  settled  upon  the  hypothe- 
sis that  there  was  but  one  adjudication  made  in  pursuance 
of  the  third  section  of  the  act  of  February  28th,  1793,  and 
that  the  case  of  the  United  States  v,  Yale  Todd  was  that 

adjudication.     If  this  view  be  true,  no  such  case  as — 

V.  the  Secretary  of  War  ever  existed,  and  no  mandamus 
was  ever  moved  for  in  the  Supreme  Court  in  original  juris- 
diction  on  behalf  of  any  pension  claimant. 

If  this  conclusion  be  thought,  or  assumed  to  be,  correct, 
everything  said  by  Chief  Justice  Marshall  concerning  the 

case  of  V,  the  Secretary  of  War  must  be  discarded 

in  investigating  the  nature  of  the  opinion  in  United  States 
?).  Yale  Todd.  The  moment  this  is  done,  however,  a  very 
serious  question  necessarily  arises  as  to  another  effect  of 
the  non-existence  of  any  such  case  as  -^ — —  v.  the  Secretary 
of  War.  If  no  such  case  ever  existed,  what  is  the  effect  of 
such  a  fact  upon  the  opinion  ia  the  great  case  od:  Marbury 
T).  Madison? 


2  0. 


18  INTRODUCTION. 

IS'o.  8. 
Of  the  case  of  Marhury  v.  Madison. 

This  brings  the  discussion  to  the  third  case  on  the  list, 
which  is  Marbiiry  ti.  Madison. 

It  is  certain  that  the  opinion  in  the  case  of  Marbury  ^.' 
Madison  proves  that  the  court  assumed  that  such  a  case  as 

V.  the  Secretary  of  War  existed,  and  that  it  pondered 

seriously  upon  the  relation  thereof  to  the  case  before  it.  It 
must,  therefore,  be  true  in  point  of  fact  that  the  court 
thought  thus,  mz.,  that  there  were  two  cases  as  to  a  man- 
damus in  original  jurisdiction  which  were  known  to  it  as 
actually  existing ;  that  in  the  first  case,  it  had  refused  to 
issue  the  writ  because  of  a  decision  on  the  merits,  not  because 
of  any  doubt  as  to  the  jurisdiction;  that  it  had  not  questioned 
its  original  jurisdiction  in  that  case,  and  so  had  recognized 
the  constitutionality  of  the  involved  portion  of  the  jnidiciary 
act ;  that  in  Marbury  v.  Madison,  or  the  second  case,  its 
action  contradicted  its  former  action  in  the  first,  because  it 
refused  to  take  jurisdiction  and  decided  that  the  said  in- 
volved portion  of  the  judiciary  act  was  unconstitutional. 

Thus,  in  Marbury  v.  Madison,  the  court  must  have  thought 
that  it  was  virtually  overruling  the  therein  mentioned  case 

of V.  the  Secretary  of  War.      It  could  not,  indeed, 

have  formally  overruled  it,  because  it  had  neither  a  report 
nor  a  record  of  the  case  before  it.  Only  a  tradition  of  the 
case  was  before  it,  and  mere  traditions  can  not  be  formally 
overruled.  In  jDoint  of  fact,  the  tradition  detailed  is  not  free 
from  doubt  as  to  its  correctness. 

Now,  if  it  be  true  that  no  such  case  as  that  of ?). 

the  Secretary  of  War  ever  existed,  the  opinion  in  Marbury 
n.  Madison  is  not  correct  in  all  and  eacli  of  its  parts.  If 
no  such  case  ever  existed,  all  reliance  upon  it  to  strengthen 
the  merits  of  Marbury' s  case  must  be  given  up.  Its  import- 
ant place  in  the  exj)osition  of  those  merits  must  be  made  a 
blank.  This  is  saying  something  of  great  moment.  Two- 
thirds  of  Marshairs  opinion  are  devoted  to  the  discussion 
of  the  merits,  after  which  comes  the  discussion  of  the  juris- 


INTRODUCTION.  19 

diction.  It  is  well  known  that  the  correctness  of  this  method 
has  been  adversely  criticised.  In  Yan  Buren  on  "Political 
Parties"  (pages  287  and  288),  such  an  objection  is  strongly- 
urged  against  Marbury  v.  Madison.  In  Mr.  Patterson's  essay 
on  "The  Political  Crisis  of  1861"  (page  19),  that  case  is 
coupled  with  Dred  Scott  v,  Sandford,  and  both  are  com- 
mented upon  as  liable  to  such  adverse  criticism. 

It  can  not  be  denied  that  in  Bx  parte  MacCardle  (7  Wal- 
lace, pages  513,  514),  the  court  decided  against  its  jurisdic- 
tion in  the  case,  and  held  that  therefore  "it  is  useless,  if 
"not  improper,  to  enter  into  any  discussion  of  other  ques- 
* '  tions. ' '  Its  opinion,  furthermore  said  that,  ' '  jurisdiction 
"  is  the  power  to  declare  the  law,  and  when  it  ceases  to  ex- 
"  ist,  the  only  function  remaining  to  the  court  is  that  of  an- 
"  nouncing  the  fact  and  dismissing  the  cause.  And  this  is 
"not  less  clear  upon  authority  than  upon  principle."  If 
this  doctrine  of  MacCardle' s  case  be  the  rule,  Marbury  v. 
Madison  must  be  "either  an  exception  to  that  rule,  or  a  viola- 
tion of  it.  To  be  an  exception,  the  opinion  of  the  court 
must  be  correct  as  a  whole.  The  opinion  shows  that  the 
court  thought  that  a  denial  of  the  writ  would  be  a  denial  of 
justice,  if  it  were  competent  to  issue  the  same  in  original 
jurisdiction  in  obedience  to  the  statute.  Consequently,  the 
court  must  have  investigated  the  merits  of  Marbury' s  case 
and  decided  in  favour  of  his  riglit  to  the  claimed  office,  in 
order  to  demonstrate  that  his  case  was  absolutely  a  judicial 
one,  and  that  it  was,  therefore,  a  judicial  and  not  an  extra- 
judicial question  whether  the  act  giving  him  an  apt  remedy 
Avas  repugnant  to  the  constitution  or  not. 

The  case  of v.  the  Secretary  of  War  is  too  import- 
ant a  part  of  the  opinion  as  a  whole,  for  it  to  be  struck  out, 
without  weakening  the  claim  of  Marbury  v.  Madison,  to  be 
an  exception  to  the  rule  asserted  in  MacCardle' s  case.     If 

it  be  true  that  no  such  case  as v.  the  Secretary  of 

War  ever  existed,  the  opinion  in  Marbury  v.  Madison,  con- 
sidered as  a  whole,  becomes  weakened,  perhaps  even  imper- 
fect. Thus,  is  raised  the  question  whether  it  conflicts  with 
the  opinion  in  MacCardle' s  case  ;  because,  if  it  be  not  an  ex- 
ception to  the  rule  laid  down  therein,  it  must  be  a  violation 
of  it. 


20  INTRODUCTION. 

The  entire  discussion  of  the  merits  of  Marbury's  case  can, 
of  course,  be  stridden  out  of  the  opinion,  without  aif  ecting 
in  any  way  the  reasoning  of  that  part  of  it  wliich  treats  of 
the  great  question,  whether  an  unconstitutional  enactment 
can  become  a  law.  So  doing,  does  not  affect  the  logic  by 
which  a  negative  conclusion  on  that  question  is  reached. 
It  does,  however,  affect  that  part  of  the  opinion  in  other  re- 
spects. The  truth  in  point  of  legal  history,  and  in  point  of 
judicial  precedent,  concerning  the  conclusion  when  reached 
by  correct  logic,  must  be  well  pondered,  in  order  to  under- 
stand precisely  the  place  which  Marbury  v.  Madison  occu- 
pies among  the  court's  judicial  decisions  on  unconstitu- 
tional legislation.     If  the  fact  be  that  there  w^as  no  such 

case  as v.  the  Secretary  of  War,  then  the  court  erred 

in  thinking  (as  it  must  have  thought),  that  its  action  in  the 
case  of  Marbury  v.  Madison  contradicted  its  previous  action 
in  a  former  case  as  to  a  mandamus  in  original  jurisdiction. 
It  furthermore  erred  in  thinking  (as  it  must  have  thought), 
that  its  affirmation  of  the  unconstitutionality  of  part  of  the 
judiciary  act,  contradicted  a  previous  decision  recognizing 
the  validity  thereof.  Whether  such  errors  were  committed 
is  a  question  here  raised.     It  cannot  be  answered,  until  it 

be  settled  one  way  or  other  whether  such  a  case  as v. 

the  Secretary  of  War  ever  existed.  This  is  not  the  i:^lace 
to  settle  the  doubts  thereupon.  It  is,  however,  the  place  to 
say  that  such  doubts  exist. 

No.  9. 

Of  the  cases  of  the  United  States  v.  Ferrelra^  and  Gordon 
V.  the  United  States. 

The  4th  and  5th  cases  are  those  next  on  the  list  in  Part 
A.  They  are  the  United  States  v.  Ferreira  and  Gordon  v. 
the  United  States.  In  both  these  cases,  the  legislative  pro- 
visions, which  were  decided  to  be  unconstitutional,  related 
specially  to  the  judicial  department  of  the  U.  S.  govern- 
ment. 

After  the  4th  case,  that  of  Dred  Scott  v.  Sandford  should 
be  inserted.     As  has  been  mentioned,  it  was  the  first  case 


INTRODUCTION.  21 

in  which  the  statute  decided  to  he  unconstitutional  did  not 
specially  relate  to  the  judicial  department.  The  great  up- 
roar and  opposition  made  against  this  decision  are  well 
known. 

No.  10. 
Of  the  case  of  Ex  parte  Garland. 

The  case  numbered  the  6th,  is  Ex  parte  Garland.  The 
legislation,  which  was  decided  to  be  unconstitutional,  re- 
lated to  the  oaths  of  members  of  the  bars  of  the  U.  S.  courts. 
It  therefore  specially  concerned  the  judicial  department. 

The  case  numbered  the  7th  on  the  list  is  Hepburn  ?).  Gris- 
wold.  The  legislation  decided  to  be  unconstitutional  re- 
lated to  the  legal  tender  of  greenbacks.  It  thus  was  the 
second  of  the  decisions  which  did  not  relate  specially  to 
legislation  for  the  judicial  department.  Like  Dred  Scott  v. 
Sandford,  it  excited  great  opx)Osition.  It  was  finally  over- 
ruled in  subsequent  decisions  of  the  court. 

No.  11. 

Of  the  case  of  the  United  States  v.  De  Witt, 

The  case  numbered  the  8th  on  the  list  is  the  United  States 
V.  De  Witt.  This  was  a  criminal  case  of  the  date  of  Decem- 
ber term,  1869.  It  was  the  third  case,  in  which  the  legisla- 
tion decided  to  be  unconstitutional,  did  not  relate  si)ecially 
to  the  judicial  department.  At  last,  a  decision  of  that  sort 
was  made,  which  did  not  excite  opposition. 

No.  12. 

Of  the  foregoing  cases  in  general. 

It  is  unnecessary  to  comment  upon  the  remaining  twelve 
cases  of  Part  A.  Sufficient  has  been  said  to  show,  that 
further  discussion  of  the  subject  of  this  Essay  is  specially 
invited  by  the  history  of  decisions  upon  unconstitutional 
acts  of  Congress. 


22  INTRODUCTION. 


No.  13. 

Of  the  cases  in  which  the  Supreme  Court  has  decided  state 
legislation  of  any  sort  to  he  {federally)  unconstitu- 
tional, with  a  detailed  statement  thereof. 

The  same  necessity  for  further  discussion  is  shown  by  the 
history  of  the  Supreme  Court's  judicial  decisions  upon  fed- 
erally unconstitutional  acts  of  the  several  states. 

Part  B.  of  the  table  of  cases  in  the  Appendix  to  131  U.  S. 
Reports,  contains  a  list  of  cases  in  which  acts  of  state  legis- 
lation have  been  "  held  to  be  repugnant  to  the  constitution 
^'or  laws  of  the  United  States,  in  whole  or  in  part."  Ac- 
cording to  the  writer's  count,  the  number  of  these  cases  is 
185.  From  this  number,  three  cases  must  be  subtracted, 
mz.^  Kansas  No.  3,  Missouri  No.  12,  and  West  Virginia 
No.  3,  in  which  the  statutes  involved  were  decided  to  be  re- 
pugnant to  the  constitutions  of  the  respective  states,  not  to 
the  constitution  of  the  United  States  :  See  Loan  Associa- 
tion V.  Topeka,  20  Wallace,  Qbo ;  Cole  v.  La  Grange,  113  U. 
S.  1 ;  Parkersburg  v.  Brown,  106  U.  S.  487.  A  further  re- 
duction of  five  cases  is  proper,  that  being  the  number  of 
cases  in  which  acts  of  territorial  legislation  were  decided 
unconstitutional.  Such  cases  should  not  be  confounded, 
either  in  principle  or  in  any  commentary  upon  the  constitu- 
tional text,  with  cases  in  which  state  laws  or  state  consti- 
tutions are  involved.  Thus,  the  number  of  cases  is  reduced 
to  177. 

Of  these  177  cases,  there  are  11  in  which  the  federal  un- 
constitutionality pronounced  by  the  court  affected  state 
constitutions;  and  152  in  which  it  affected  state  statutes.  In 
the  remainder,  either  acts  connected  with  secession  or  ordin- 
ances of  municipalities  were  involved. 

It  may  be  remarked  that  in  63  cases,  or  more  than  one- 
third  of  the  whole  number,  the  constitutional  repugnancy 
was  to  the  clause  prohibiting  state  laws  impairing  the  obli- 
gation of  contracts. 


INTRODUCTION".  23 


JSTo.  14. 


General  observations  upon  the  class  of  cases  contained  in 
Part  B.  of  the  final  paper  in  the  Appendix  to  131  U.  S. 
Reports. 

It  is  obvious  from  the  great  number  and  great  importance 
of  the  cases  in  Part  B.,  that  there  must  be  much  utility  in  a 
-further  discussion  of  the  constitutional  relation  of  Judicial 
power  to  unconstitutional  legislation.  The  decisions  of  the 
Supreme  Court  upon  federally  unconstitutional  state  legis- 
lation alone,  are  sufficient  for  such  a  conclusion.  This  truth 
is  proved  over  again  by  what  has  happened  since  the  table 
of  cases  was  published.  Since  then,  the  so-called  original 
X)ackage  decision  of  the  Supreme  Court  has  been  made,  and 
has  caused  an  immense  amount  of  discussion,  both  in  the 
halls  of  Congress  and  throughout  the  United  States.* 

No.   15. 

Conclusion  from  the  foregoing  review. 

The  foregoing  review  of  the  final  paper  in  the  Appendix 
to  131  U.  S.  Reports,  it  is  contended,  shows  conclusively 
that  that  paper  should  be  the  beginning,  and  not  the  end,  of 
a  new  discussion  of  the  relation  of  judicial  power  to  uncon- 
stitutional legislation  according  to  the  constitution  of  the 
United  States.  This  important  conclusion  is  drawn  from 
the  experience  of  a  century.  It  is  supported  by  the  history 
of  the  constitution,  as  studied  in  the  reports  of  cases  before 
the  judicial  tribunal  from  whose  decisions  on  constitutional 
questions  there  is  no  judicial  appeal. 

*  Leisy  v.  Hardin,  135  U.  S.  Eeports,  100. 


24  INTEODUCTION. 


CHAPTER  III. 

Of  tlie  second  class  of  extraordinary  reasons  for  fresli 
discussion  of  tlie  sutiject. 

No.  1.  Of  the  case  of  JuilUard  v.  Greenman;  of  Mr.  Mc^ 
Murtrie^  s  defence  of  the  decision  therein  ;  and  of  his  doc- 
trine as  to  the  exercise  of  judicial  power  in  declaring  leg- 
islation to  he  unconstitutional  and  void. 

No.  2.  Of  the  doctrine  of  the  opinion  in  JuilUard  v. 
Greenman,  concerning  the  constructive  or  implied  powers 
of  Congress. 

No.  3.  Of  the  rigorous  exercise  of  such  powers  of  Con- 
gress according  to  the  said  doctrine. 

No.  Jf.  Of  the  effect  of  the  two  foregoing  doctrines,  when 
the  same  are  taken  and  applied  together  ;  and  of  a  sup- 
posed case  of  an  act  of  Congress  prohibiting  the  Supreme 
and  Inferior  Courts  from  declaring  any  act  of  Congress 
to  he  unconstitutional  and  so  void. 

No.  5.  Quotations  from  Mr.  McMurtrie's  Ohser nations 
showing  his  doctrine  concerning  judicial  power. 

No.  6.  Quotations  from  the  opinion  in  JuilUard  v. 
Greenman,  showing  the  Supreme  Courf  s  doctrine  concern- 
ing legislative  powers. 

No.  7.  Of  the  consequences  of  hoth  doctrines  heing  true. 

No.  8.  That  the  foregoing  considerations  prove  the  exist- 
ence of  a  second  class  of  extraordinary  reasons  for  afresh 
discussion  of  the  subject  of  this  Essay. 


This  chapter  will  be  devoted  to  the  second  class  of  extra- 
ordinary reasons  for  a  fresh  discussion  of  the  subject.  They 
are  derived  from  a  part  only,  and  a  recent  part,  of  the  judi- 
cial history  of  the  constitution. 


INTRODUCTION.  25 

No.    1. 

Of  the  case;  of  JullliardY.  Oreenman  ;  of  Mr.  McMurtrie' s 
defence  of  the  decision  therein ;  and  of  his  doctrine  as 
to  the  exercise  of  judicial  power  in  declaring  legislation 
to  he  unconstitutional  and  void. 

The  second  class  of  the  said  reasons  is  concerned  with 
but  one  decision  of  the  Supreme  Court  and  has  its  origin 
in  it  and  the  controversy  caused  by  it.  This  decision  is  that 
made  in  the  case  of  Juilliard  v.  Greenman  in  110  U.  S.  Re- 
ports, 421^70.  The  case  is  the  last  of  the  celebrated  legal 
tender  litigations,  but  the  part  of  the  opinion  of  the  court 
lierein  specially  concerned  is  that  which  lays  down  a  general 
doctrine  relating  to  the  constructive  or  implied  powers  of 
Congress. 

In  Juilliard  v.  Greenman  "*  the  U.  S.  Supreme  Court  de- 
cided, inter  alia^  that  Congress  in  its  discretion  had  power 
to  make  U.  S.  bills  of  credit  a  legal  tender  in  payment  of  all 
debts.  Mr.  Bancroft,  in  February,  1886,  published  an  im- 
portant essay  in  adverse  criticism  of  the  decision  of  tlie 
court.  In  the  autumn  of  1886,  Mr.  McMurtrie  published  a 
learned  answer  to  Mr.  Bancroft's  criticisms,  containing  a  de- 
fence of  that  decision  and  also  his  own  views  of  the  legal 
tender  question.  The  differences  between  the  historian  and 
the  jurist  are  grave,  both  as  to  conclusions  and  methods  of 
reaching  them. 

The  following  are  the  titles  of  these  important  essays  : 
"A  Plea  for  the  Constitution  of  the  United  States  of 
"America  wounded  in  the  House  of  its  Guardians.  By 
"  George  Bancroft."     New  York,  1886. 

"Plea  for  the  Supreme  Court.  Observations  on  Mr. 
"  George  Bancroft's  Plea  for  the  Constitution.  By  Richard 
"C.  McMurtrie."     Philadelphia,  1886. 

The  writer's  study  of  the  opinion  of  the  Supreme  Court 
and  Mr.  McMurtrie' s  defence  thereof,  has  resulted  in  a  con- 
viction that,  great  as  is  the  importance  of  the  legal  tender 

*  110  U.  S.  Reports,  121-470.  Decided  March  od,  1884.  Reported  under 
the  name  of  "  Legal  Tender  Case,  Juilliard  v.  Greeumau." 


26  INTRODUCTION. 

question,  another  and  still  greater  one  has  become  involved 
in  the  controversy.  That  question  relates  to  the  competency 
of  the  U.  S.  Supreme  Court  to  decide  a  legal  tender  act  or 
any  other  act  of  Congress  to  be  unconstitutional  and  to 
hold  that  the  same  is  void,  if  the  opinion  in  the  case  of 
Juilliard  ?).  Greenman  be  law  as  to  the  constructive  powers 
of  Congress.  The  decision  of  the  court  might  anyhow  sug- 
gest a  re-study  of  the  grounds  of  its  exercise  of  judicial 
power  in  this  respect.  Mr.  McMurtrie's  essay  has,  however, 
directly  re- opened  the  whole  of  that  subject ;  and  in  this 
wise.  Persons  denying  the  power  of  making  greenbacks  a 
legal  tender,  are  reproached  by  him  with  thorough  incon- 
sistency. He  contends  that  they  maintain  that  the  court 
should  declare  the  legal  tender  laws  to  be  void,  on  the 
ground  that  the  legal  tender  x3ower  is  based  exclusively  on 
implication  and  inference  ;  that  in  so  doing  they  at  the  same 
time  ignore  that  the  court's  power  of  "declaring  void  a  leg- 
islative act"  is  based  exclusively  on  implication  and  infer- 
ence ;  and  that  the  judicial  power  of  so  declaring  was  never 
heard  of,  before  tacit  implication  and  inference  originated  in 
this  country. 

This  doctrine,  coming  from  a  jurist  of  so  high  a  rank,  can 
not  be  ignored.  Its  scope  is  vast ;  for,  if  true,  it  applies 
to  all  questions  of  constructive  powers  in  Congress,  and  not 
merely  to  the  one  in  debate.  It  amounts  to  a  warning  to 
every  lawyer,  in  every  case,  to  take  heed  how  he  argue  that 
the  court  should  decide  against  any  claim  of  constructive 
legislative  power  in  Congress,  for  the  judicial  power  of  the 
court  itself  only  constructively  extends  to  cases  involving 
any  such  questions  at  all. 

The  gravity  of  this  doctrine  is  such  that  it  must  be  dis- 
posed of  in  some  way,  either  by  refutation,  or  limitation, 
or  precise  ascertainment ;  otherwise,  the  discussion. of  most 
constitutional  questions  may  be  embarrassed,  by  its  being 
vouched  at  any  moment. 

The  presentation  of  this  doctrine  is  certainly  a  very  seri- 
ous  move  on  the  logical  chessboard  of  any  legal  controversy 
concerning  the  implication  of  a  legislative  power.  If  the 
existence  of  the  judicial  competency  under  discussion  de- 


INTRODUCTION.  27 

pended  solely  upon  implication,  it  would  have  to  be  an- 
swered by  a  move  different  from  that  which  the  writer  will 
make.  His  view  is  that  the  constitution  provides  for  such 
a  judicial  competency  in  express  terms  and  he  will  proceed 
accordingly. 

The  connection  of  Mr.  McMurtrie's  doctrine  as  to  the  ex- 
ercise of  Judicial  x)ower  in  declaring  legislation  unconstitu- 
tional and  void,  w^itli  the  doctrine  of  the  U.  S.  Supreme 
Court  in  Juilliard  v.  Greenman  concerning  the  constructive 
powers  of  Congress,  makes  the  matter  a  very  extraordinary 
one  in  point  of  law.  It  is  true  that  Mr.  McMurtrie  makes 
no  allusion  to  any  connection  between  these  two  doctrines. 
He  may,  perhaps,  admit  no  connection  between  them.  To 
the  writer's  conviction,  however,  the  connection  is  intimate 
and  remarkable,  and  so,  most  important. 

The  doctrine  of  Juilliard  t\  Greenman  upon  the  construc- 
tive powers  of  Congress  will  now  be  examined. 

No.  2. 

Of  the  doctrine  of  the  opinion  in  Juilliard  v.  Greenrnan 
concerning  the  constructive  or  implied  powers  of  Con- 
gress. 

In  the  case  of  Juilliard  v.  Greenman"^  the  U.  S.  Supreme 
Court,  in  its  decision,  proceeded  upon  a  certain  general  doc- 
trine therein  laid  down,  concerning  the  relation  of  the  pow- 
ers of  Congress  to  the  powers  belonging  to  sovereignty  in 
other  civilized  nations,  which  the  national  legislatures 
thereof  habitually  exercise.  According  to  this  doctrine,  it 
follows  as  a  legal  and  necessary  consequence  of  the  ex- 
pressly granted  powers  of  Congress  that  it  has  construct- 
ively, as  incidental  thereto,  all  the  powers  which  the  na- 
tional legislatures  of  foreign  sovereign  and  civilized  gov- 
ernments have  and  use,  as  incidental  to  powers  identical 
with  the  express  powers  aforesaid, ;  provided  only  that  such 
constructive  powers  are  not  ''prohibited"  to  Congress  by 
the  constitution.  The  same  doctrine  holds  that  Congress, 
as  the  legislature  of  a  sovereign  nation,  has  certain  great 

mo  U.  S.  Reports,  421. 


28  INTRODUCTIOIS'. 

powers  expressly  granted  to  it ;  and  that  therefore  all  other 
powers,  which  are  powers  belonging  to  sovereignty  in  other 
civiJized  nations  that  are  used  incidentally  and  similarly  by 
their  national  legislatures,  are  necessary  and  proper  means 
of  carrying  into  execution  the  powers  vested  in  Congress, 
and  are  in  consequence  constructively  granted  to  Congress  ; 
provided  only  that  such  constructive  powers  be  not  "ex- 
pressly withheld"  from  Congress  by  the  constitution. 

No.  3. 

Of  the  rigorous  exercise  of  such  powers  of  Congress  ac- 
cording to  the  said  doctrine. 

This  important  constitutional  doctrine  is  a  far  reaching 
one.  It  is  laid  down  in  ample  terms.  It  maintains  that  no 
such  constructive  power  is  defeated,  or  restricted,  by  the  fact 
that  its  exercise  may  affect  the  existing  rights  of  individ- 
uals. It  maintains  that,  if  upon  a  just  and  fair  interpreta- 
tion or  construction  of  the  whole  constitution,  a  particular 
power  exists,  such  power  may  be  exercised  in  cases  in  which 
the  existing  rights  of  individuals  are  incidentally  affected, 
as  much  as  in  cases  in  which  those  rights  are  not  so  affected. 

This  scope  of  the  doctrine  is  asserted  in  the  oiMnion  with- 
out any  mention  or  consideration  of  the  ninth  amendment 
of  the  constitution  in  connection  with  such  constructive 
powers.  That  amendment  provides  that  "the  enumeration 
"  in  the  constitution,  of  certain  rights,  shall  not  be  construed 
"to  deny  or  disparage  others  retained  by  the  people."  Nev- 
ertheless, if  the  constructive  or  implied  power  exists  as  as- 
serted, it  must  do  so  to  the  denial  or  disparagement  of  all 
existing  rights  retained  by  the  people,  which  are  not  ex- 
pressly enumerated  in  some  part  of  the  constitution.  There 
is  no  proviso  in  the  opinion  withholding  the  exercise  of  the 
constructive  power  in  the  cases  of  rights,  the  denial  or  dis- 
paragement of  which  is  not  expressly  prohibited  by  the 
enumeration  thereof.  If  the  people  have  retained  a  right 
to  free  elections,  or  a  right  to  an  unimpaired  obligation  of 
their  contracts,  the  power  can  reach  either  when  rigorously 
exercised,  because  neither  is  enumerated  in  the  constitu- 


INTRODUCTION-.  29 

tion.  The  only  provisos  are :  (1)  that  the  power  be  not  pro- 
hibited (that  is  to  say,  not  expressly  withheld) ;  and  (2)  that 
it  be  one  which  belongs  to  sovereignty  in  other  civilized  gov- 
ernments and  is  exercised  by  the  sovereign  legislatures 
thereof  as  incidental  to  powers  identical  with  those  to  which 
it  is  incident  under  the  U.  S.  constitution. 

The  doctrine  is  not  laid  down  with  any  limitation  that 
Congress  must  expressly  say  that  it  proceeds  in  derogation 
of  existing  rights.  Hence,  in  the  absence  of  any  declaration 
to  the  contrary  in  an  act  of  Congress,  the  rule  for  constru- 
ing it  inust  be  as  follows:  the  presumption  is  that  Con- 
gress does  not  proceed  according  to  the  good  right  of  its 
power,  but  proceeds  according  to  the  strict  rigour  thereof, 
regardless  of  all  existing  rights  aforesaid.  It  has  itself  no 
right  to  respect  those  rights,  unless  it  expressly  declares 
that  it  proceeds  rightfully  in  legislating.  No  matter  how 
exorbitant  or  odious  the  rigorous  exercise  of  a  power  may 
sometimes  be,  the  presumption  in  favour  thereof  must  be 
made  in  all  cases  in  w^hich  the  act  of  Congress  contains  no 
express  disclaimer.  Such  presumption  is  not  limited  to  the 
particular  cases  of  debased  coin  and  greenbacks,  but  extends 
to  those  of  all  existing  rights  within  the  reach  of  the  rigor- 
ous exercise  of  sovereign  i3owers  by  sovereign  legislatures 
as  aforesaid. 

If  the  opinion  in  Juilliard  v.  Greenman  be  correct  as  to 
the  constitutional  law  of  legislation,  Congress  can  proceed 
in  a  rigorous  and  not  rightful  exercise  of  a  legislative  power, 
without  expressly  declaring  that  it  so  proceeds.  A  fortiori 
it  can  proceed  in  a  rigorous  exercise  of  a  power,  when  it 
expressly  declares  that  it  legislates  with  rigour.  Such  a 
rigorous  exercise  of  a  constructive  power  of  legislation  is  as 
legal  as  a  rightful  exercise  thereof,  whenever  the  power  is 
not  prohibited,  (that  is  to  say,  not  expressly  withheld),  and 
is  one  which  belongs  to  sovereignty  and  is  exercised  by 
sovereign  legislatures  abroad  as  aforesaid. 

When  construction  has  gone  so  far  in  either  revealing  or 
ampliating  the  powers  of  legislation,  the  most  natural  ques- 
tion possible  for  a  critical  observer  to  ask  is  :  What  next  ? 
The  next  thing  has  been  already  mentioned.     It  is  Mr.  Me- 


30  ITs^TRODTJCTION. 

Murtrie's  doctrine  concerning  judicial  power  and  uncon- 
stitutional legislation. 

No.  4. 

Of  the  effect  of  the  two  foregoing  doctrines,  when  the  same 
are  taken  and  applied  together ;  and  of  the  supposed 
case  of  an  act  of  Congress  prohibiting  the  8upr(,me  avd 
Inferior  Courts  from  declaring  acts  of  Congress  to  he 
uncon stitutional  and  mid. 

The  court's  doctrine  in  Juilliard  T),  Greenman,  concerning 
the  implied  or  constructive  powers  of  Congress,  and  Mr. 
McMurtrie's  doctrine,  that  the  U.  S.  Supreme  Court  pro- 
ceeds upon  a  purely  implied  power  in  declaring  acts  of  Con- 
gress to  be  unconstitutional  and  void,  when  taken  together, 
seem  to  undermine  the  foundations  of  the  Judicial  power  as 
hitherto  understood. 

According  to  its  decision  in  the  case  of  the  State  of 
Georgia  ^'.  Stanton,  Grant  and  Pope  (6  Wallace  50-78),  the 
U.  S.  Supreme  Court  is  competent  to  declare  a  questioned 
act  of  Congress  to  be  unconstitutional  and  void  in  certain 
cases  ;  namely,  those  in  which  the  rights  in  danger  are  not 
merely  political  rights.  In  cases,  in  which  the  rights  in 
danger  are  merely  political  rights,  the  court,  by  its  own  de- 
cision, is  not  competent  to  declare  any  act  of  Congress  what- 
soever to  be  unconstitutional  and  void. 

Article  113  of  the  Swiss  Federal  constitution  prescribes 
that  the  Federal  Tribunal  shall  apply  in  all  cases  all  laws 
enacted  by  the  Federal  Assembly.  If,  in  admiration  of  such 
Swiss  ideas,  the  U.  S.  Congress  were  to  enact  a  statute  pro- 
hibiting the  Supreme  and  Inferior  Courts  from  declaring  any 
act  of  Congress  in  any  case  to  be  unconstitutional  and  void, 
it  seems  impossible  to  understand  how  such  a  statute  would 
not  be  valid,  supposing  the  doctrine  in  Juilliard  v.  Green- 
man  and  Mr.  McMurtrie's  doctrine  to  be  both  wholly  cor- 
rect. If  they  both  be  wholly  correct,  the  power  to  enact 
such  a  law  can  not  be  expressly  withheld,  must  be  unknown 
in  every  other  civilized  country,  and  must  be  incidental  to 
the  express  legislative  powers  of  Congress,  among  which  is 


INTRODUCTION.  ^  31 

that  of  making  all  laws  necessary  and  proper  for  carrying  its 
other  powers  into  execution. 

Mr.  McMurtrie  maintains  that  the  existence  of  a  judicial 
l^ower  of  declaring  acts  of  Congress  to  be  unconstitutional 
and  void  is  ascertained  solely  by  tacit  implication  and  in- 
ference, is  not  expressly  granted  and  is  not  expressly  men- 
tioned or  expressly  referred  to  in  the  constitution.  It  is 
clear,  therefore,  that  such  a  power  can  not  either  be  men- 
tioned or  referred  to  in  any  express  text  forbidding  Congress 
to  pass  any  law  prohibiting  the  Supreme  and  Inferior 
Courts  from  exercising  the  same.  A  power  of  passing  ex 
post  facto  laws  is  twice  expressly  mentioned  in  the  constitu- 
tion ;  once,  in  forbidding  Congress,  and  again,  in  forbidding 
the  states,  to  pass  such  laws.  This  shows,  that  it  would  be 
impossible  to  prohibit  or  withhold  that  or  any  other  power 
expressly,  without  mentioning  it  expressly.  The  power  of 
passing  a  statute  prohibiting  the  exercise  of  judicial  power 
as  above  sux)posed,  cannot,  therefore,  be  expressly  withlield 
by  the  constitution. 

Mr.  McMurtrie  furthermore  maintains  that  a  judicial 
power  of  declaring  legislation  to  be  void  has  always  been 
unknown  in  any  other  country.  Hence,  it  is  clear  that  in 
all  other  countries,  jDresent  or  past,  having  constitutions  of 
any  sort  or  kind,  the  legislature  of  each  government  can  or 
could  bind  the  courts  to  obey  and  apply  all  its  laws,  and 
has  or  had,  as  incident  to  its  legislative  powers,  the  power 
of  prohibiting  the  courts  from  declaring  any  law  to  be  un- 
constitutional and  void. 

Recurring  to  the  question  raised  by  the  case  put,  it  is  con- 
tended that  the  foregoing  observations  show  that  an  affirm- 
ative answer  should  be  given  to  it ;  that  is  to  say,  if  the 
Supreme  Court's  doctrine  and  Mr.  McMurtrie' s  be  both 
wholly  true,  Congress  .has  power  to  pass  a  law  prohibiting 
the  Supreme  and  Inferior  Courts  from  declaring  any  act  of 
Congress  to  be  unconstitutional  and  void. 

To  make  the  evidence  of  the  correctness  of  this  answer  to 
the  question  as  complete  as  possible,  it  is  requisite  that  the 
foregoing  statements  of  the  respective  doctrines  of  the  Su- 
preme Court  and  Mr.  McMurtrie  should  be  verified  by  re- 


32  INTRODUCTION. 

producing  the  actual  language  used  by  both.     This  will  now 
be  done. 

No.  5. 

Quotations  from  Mr,  McMurtrle'  s  Observations^  showing 
his  doctrine  concerning  judicial  power. 

Mr.  McMurtrie's  doctrine  is  found  in  the  following  pas- 
sages from  pages  13,  14  and  15  of  his  Observations  : 

' '  Let  me  ask,  whence  is  derived  this  ]30wer  that  we  are 
'  now  discussing,  that  of  declaring  void  a  legislative  act  ? 
'  Was  such  a  political  power  ever  heard  of  before  ?  Did 
'  any  state  before  ever  grant  to  its  judicial  functionaries  the 
'  power  of  declaring  and  enforcing  the  limits  of  its  own 
'  sovereignty  ?  What  state  before  conferred  on  a  court  of 
'  justice,  in  determining  the  rights  of  two  suitors  as  a  mere 
'  incident,  and  without  a  hearing  on  behalf  of  the  state,  the 
'  power  to  determine  that  its  legislative  acts,  approved  and 
'  sanctioned  by  all  its  statesmen  for  thirty  years,  had  al- 
'  ways  been  mere  nullities — nullities  ab  initio  ?  ^  But 
'  granting  this  to  be  covered  by  the  constitution,  what  are 
'  we  to  say  of  the  thirteen  independent  sovereignties  who 
'  thus  surrendered  to  a  tribunal  they  were  to  have  no  part 
'  in  constituting,  the  absolute  and  uncontrollable  power  of 
'  deciding  between  themselves,  and  the  power  that  a j)pointed 
'the  court?  Is  there  any  such  grant  in  the  constitution, 
'  or  any  allusion  to  it?  Since  C.  J.  Marshall's  judgment  in 
'  Marbury  v.  Madison,  I  should  have  said,  but  for  the  facts 
'  contradicting  me,  that  no  one  probably  has  been  able  to 
'  question  that  the  power  does  not  exist,  and  that  it  was 
'  created  by  the  constitution.  But  it  is  a  mere  deduction 
'of  logic.  Impossible  (to  my  apprehension)  for  a  sane 
'  mind  to  question,  f  but  still  derived  by  tacit  implication^ 
'  a  process  which  one  of  the  most  conspicuous  members  of 

*  These  powerfully  put  observations  make  a  most  interesting  contrast  with 
Iredell's  remarks  on  page  147  of  Vol.  2  of  his  Life,  being  paragraphs  4,  5  and 
6  of  his  paper  reprinted  in  Chapter  26  of  this  Essay. 

t  The  emphatic  form  of  expression  here  used  recalls  Marshall's  sentence  on 
oaths  of  office  at  the  end  of  the  1st  paragraph  of  page  416  of  4  Wheaton,  be- 
ginning: "  Yet,  he  would  be  charged  with  insanity,  who  should  contend, "  etc. 


INTRODUCTION.  33 

"the  Convention  assured  the  most  important  of  the  com- 
' '  munities  that  enacted  the  instrument,  could  not  be  aground 
*'for  asserting  a  grant. 


*'It  is  certainly  true  that  before  the  adoption  of  the 
'constitution  Mr.  Hamilton  asserted  this  power  was 
'  placed  with  the  Court,  but  he  limited  it  to  the  determi- 
'  nation  of  the  extent  of  the  powers  granted  by  the  in- 
'  strument  ;*  and  if  the  makers  of  that  instrument  really 
'  foresaw  what  they  were  doing,  and  the  consequences  in- 
'  volved,  and  yet  left  such  questions  to  be  determined  as 
'  they  have  done,  with  no  i)rovision  for  what  might  occiax- 
'  while  the  legislation  was  undisputed,  anything  more,  lan- 
'  finished  than  their  work  can  be  scarcely  mentioned.  But 
'  intended  or  not,  is  it  not  a  power  that  is  to  be  ascertained 

*  to  exist  by  reasoning,  and  reasoning  only  ?  AVhy  is  the 
'  judiciary  the  only  branch  of  government,  whose  views  as 
'  to  the  powers  they  possess  by  the  grant,  are  to  be  regarded  ? 
'  If  this  be  not  implication  and  inference,  and  the  exact 
'  converse  of  an  express  grant,  I  am  at  a  loss  fora  meaning 

*  to  these  words. 

*'  Therefore  it  seems  to  me  plain  that  as  it  has  been  dem- 

*  onstrated  for  seventy  years,  and  acquiesced  in  by  all, 
'  that  one  of  the  most  important  functions  of  the  govern- 
'  ment,  nothing  less  than  a  control  over  legislatures,  execu- 
'  tivesand  tlie  sovereignties  which  formed  the  United  States, 
'  has  been  created  and  lodged  by  inference,  and  by  inference 
'  only,  in  one  branch  of  that  government,  uncontrollable 
'by  the  united  powers  of  the  imjperial  state  and  of  the 
'  states  which  constituted  the  imperiwn,  and  this  has  been 
'  done  without  any  reference  to  the  subject  in  the  constitu- 
'  tion,  and  probably  as  to  one  branch  of  the  subject  (the 
'  right  to  determine  the  illegality  of  state  legislation),  with- 
'out  any  person  concerned  in  the  matter,  seeing  that  it 
'  had  been  done,  is  it  impossible  that  other  high  ix)wers  may 
'  be  found  to  have  been  similarly  granted  1 " 

*This  is  understood  to  be  an  allusion  to  observations  in  the  Federal ist» 
which  will  be  found  on  page  541  eL  seq.  of  Dawson's  edition. 

3C. 


34  INTRODUCTION. 

In  the  foregoing  it  is,  among  other  things,  distinctly  main- 
tained : 

(1).  That  the  "power  of  declaring  legislation  to  he  uncon- 
stitutional and  void  has  been  created  and  lodged  by  infer- 
ence^ and  by  inference  only^  in  one  branch  of  the  govern- 
ment^ mz.^  the  judicial: 

(2).  That  there  is  no  reference  whatsoever  to  any  such 
power  in  the  text  of  the  constitution : 

(3).  That  no  such  exercise  of  judicial  power  has  ever 
been  heard  of  before  in  other  civilized  countries. 

No.  6. 

Quotations  from  the  opinion  in  Juilliard  v.  Greenman^ 
showing  the  Supreme  Courf  s  doctrine  concerning  legis- 
lative poioers. 

The  language  of  the  court,  which  it  is  necessary  to  quote, 
will  be  found  on  pages  447  and  449  of  110  U.  S.  Reports, 
and  is  as  follows : 

"It  appears  tons  to  follow,  as  a  logical  and  necessary 
'  consequence,  that  Congress  has  the  power  to  issue  the  ob- 
'  ligations  of  the  United  States  in  such  form,  and  to  impress 
'  upon  them  such  qualities  as  currency  for  the  purchase  of 
'  merchandise  and  the  payment  of  debts,  as  accord  with  the 
'  usage  of  sovereign  governments.  The  power,  as  incident 
'  to  the  jjower  of  borrowing  money  and  issuing  bills  or  notes 
'  of  the  Grovernment  for  money  borrowed,  of  impressing 
'  upon  those  bills  or  notes  the  quality  of  being  a  leg*al  ten- 
'  der  for  the  payment  of  private  debts,  was  a  power  univer- 
'  sally  understood  to  belong  to  sovereignty,  in  Europe  and 
'  America,  at  the  time  of  the  framing  and  adoption  of  the 
'  constitution  of  the  United  States.  The  governments  of 
'Europe,  acting  through  the  monarch  or  the  legislature, 
'  according  to  the  distribution  of  powers  under  their  re- 
'  spective  constitutions,  had  and  have  as  sovereign  a  power 
'  of  issuing  paper  money  as  of  stamping  coin.  This  power 
'  has  been  distinctly  recognized  in.  an  important  modem 
'  case,  ably  argued  and  fully  considered,  in  which  the  Em- 
'peror  of  Austria,  as  King  of  Hungary,  obtained  from  the 


INTRODUCTION.  35 

English  Court  of  Chancery  an  injunction  against  the  is- 
sue in  England,  without  his  license,  of  notes  purporting 
to  be  public  paper  money  of  Hungary.  (Austria  v.  Day, 
2  Giff.  628,  and  8  D.  F.  and  J.  217.)  The  power  of  issu- 
ing bills  of  credit,  and  making  them,  at  the  discretion  of 
the  legislature,  a  tender  in  payment  of  private  debts,  had 
long  been  exercised  in  this  country  by  the  several  colonies 
and  states  ;  and  during  the  Kevolutionary  war  the  states, 
upon  the  recommendation  of  the  Congress  of  the  Confed- 
eration, had  made  the  bills  issued  by  Congress  a  legal  ten- 
der (seb  Craig  v.  Missouri,  4  Pet.  485,  453  ;  Briscoe  v. 
Bank  of  Kentucky,  11  Pet  257,  313,  334-336  ;  Legal  Ten- 
der Cases,  12  Wall.  557,  558,  622 ;  Phillips  on  American 
Paper  Currency,  passim).  The  exercise  of  this  power  not 
being  prohibited  to  Congress  by  the  constitution,  it  is  in- 
cluded in  the  power  expressly  granted  to  borrow  money 
on  the  credit  of  the  United  States. 

''  Congress,  *as  the  legislature  of  a  sovereign  nation,  being 
expressly  empowered  by  the  constitution  to  '  lay  and  col- 
'  lect  taxes,  to  pay  the  debts  and  provide  for  the  common 
'  defence  and  general  welfare  of  the  United  States,'  and  '  to 
'borrow  money  on  the  credit  of  the  United  States,'  and 
'  to  coin  money  and  regulate  the  value  thereof  and  of  f  or- 
'  eign  coin ;'  and  being  clearly  authorized,  as  incidental 
to  the  exercise  of  those  great  powers,  to  emit  bills  of 
credit,  to  charter  national  banks,  and  to  provide  a  na- 
tional currency  for  the  whole  people,  in  the  form  of  coin, 
treasury  notes,  and  national  bank  bills  ;  and  the  power  to 
make  the  notes  of  the  Government  a  legal  tender  in  pay- 
ment of  private  debts  being  one  of  the  powers  belonging 
to  sovereignty  in  other  civilized  nations,  and  not  expressly 
withheld  from  Congress  by  the  constitution  ;  we  are  irre- 
sistibly impelled  to  the  conclusion  that  the  impressing 
upon  the  treasury  notes  of  the  United  States  the  quality 
of  being  a  legal  tender  in  payment  of  private  debts  is  an 
appropriate  means,  conducive  and  x)lainly  adapted  to  the 

mo  U.  S.  Reports,  p.  449. 


86  INTRODUCTION. 

*' execution  of  tlie  undoubted  powers  of  Congress,  consist- 
"ent  with  the  letter  and  spirit  of  the  constitution,  and 
''therefore,  within  the  meaning  of  the  instrument,  'nec- 
'' '  essary  and  proper  for  carrying  into  execution  the  powers 
'' '  vested  by  this  constitution  in  the  Government  of  the 
'''United  States.'" 

No.  7. 

A  restatement  of  the  consequences  of  both  doctrines  being 

wholly  true. 

If  the  doctrine  concerning  the  constructive  powers  of  Con- 
gress contained  in  the  above  quotations  from  the  Supreme 
Court's  opinion  be  true,  and  if  the  doctrine  concerning  ju- 
dicial power  contained  in  the  foregoing  quotations  from  Mr. 
McMurtrie's  Observations  be  true,  the  series  of  propositions 
contained  in  the  following  six  paragraphs  A,  B,  C,  D,  E 
and  F,  must  likewise  be  true  as  to  the  case  above  put,  that 
is  to  say,  the  case  of  a  law  enacted  by  Congress  prohibiting 
the  Supreme  and  Inferior  Courts  from  declaring  any  act  of 
Congress  to  be  unconstitutional  and  void.  Previously  to 
putting  them  before  the  reader,  it  is  requisite  to  refer  to 
parts  of  the  opinion  in  McCulloch  n,  Maryland,  found  on 
pages  416,  417  and  418  of  4  Wheaton. 

According  to  those  parts  of  that  decision,  the  following  is 
law.  Among  the  incidental  powers  belonging  to  Congress 
as  a  sovereign  legislature  is  that  of  legislatively  prescribing 
punishments  for  crimes  in  all  rightful  cases  except  the 
limited  number  of  cases  expressly  mentioned  in  the  con- 
stitutional text,  which  are  those  of  treason,  counterfeiting, 
piracy,  felonies  on  the  high  seas  and  breaches  of  the  law  of 
nations.  The  magnitude  of  the  incidental  power  of  pun- 
ishment inferred  by  Marshall  in  the  cases  of  unexpressed 
crimes  and  misdemeanors  is  not  greater  than  that  of  the 
incidental  power  of  legislation  inferred  by  the  case  put  in 
the  cases  of  endangered  non-political  rights.  In  the  first 
instance  the  jurisdiction  of  the  judiciary  is  enlarged,  and 
in  the  second  it  is  restricted,  by  the  same  means,  namely, 
by  inference. 


H^-TRODUCTION-.  37 

The  following  proposition  is  asserted  upon  the  authority 
of  Chief  Justice  Marshall  in  the  opinion  of  the  court  as  afore- 
said. It  is  therein  distinctly  laid  down:  (1),  that  the  power 
of  punishment  exercised  in  the  penal  code  of  the  United 
States  in  cases  not  expressed  in  the  constitution  is  one  ap- 
pertaining to  sovereignty ;  and  (2),  that  whenever  the  sov- 
ereign can  rightfully  act,  that  power  is  incidental  to  the 
sovereign's  constitutional  powers.  As  examples  of  unex- 
pressed cases  in  which  the  power  is  incidental,  the  following 
are  specified :  Stealing  letters  from  postoffices,  robbing  the 
mails,  perjury  in  U.  S.  courts,  falsifying  U.  S.  judicial  rec- 
ords, and  stealing  such  records. 

It  will  be  observed  that  the  propositions  contained  in  the 
following  six  paragraphs  are  expressed  in  language  which 
adheres  as  closely  as  may  be,  mutatis  mutandis^  to  the 
language  of  the  Supreme  Court  in  Juilliard  ».  Greenman. 

A.  By  the  constitution,  Congress  has  expressly  certain 
great  legislative  powers,  among  which  is  the  power  to  make 
all  laws  w^hich  are  necessary  and  proper  for  carrying  into 
execution  all  the  other  powers  vested  in  itself.  These  pow- 
ers are  sovereign  powers  and  must  be  construed  as  such,  ac- 
cording to  the  usages  of  sovereign  legislatures  and  lawgiv- 
ers at  the  time  when  the  constitution  of  the  United  States 
was  framed  and  adopted. 

B.  As  incident  to  the  sovereign  powers  of  every  legisla- 
ture and  lawgiver,  the  power  of  binding  judicial  courts  to 
obey  all  laws  and  of  prohibiting  them  from  criticising  any 
law  and  declaring  it  void,  was  a  power,  universally  under- 
stood to  belong  to  sovereignty  in  Europe  and  America,  at 
the  time  of  the  framing  and  adoption  of  the  constitution  of 
the  United  States. 

C.  The  governments  of  Europe  acting  through  the  monarch 
as  lawgiver  or  a  collective  body  as  legislature  according  to  the 
distribution  of  powers  under  their  respective  constitutions, 
had  and  have  as  sovereign  a  power  of  binding  judicial  courts 
by  all  laws  and  of  prohibiting  them  from  criticising  any  law 
and  declaring  it  void,  as  of  binding  private  individuals  by 
all  laws  and  of  prohibiting  them  from  disobeying  the  same 
under  penalties  of  punishment. 


38  INTRODUCTION. 

D.  The  power  of  binding  judicial  courts  to  obey  all  stat- 
utes and  of  prohibiting  them  from  criticising  any  statute 
and  declaring  it  void,  was  a  power  exercised  by  parliament 
in  England,  and  in  the  American  colonies,  and  in  all  otlier 
parts  of  the  British  empire  during  the  whole  colonial  period. 

E.  The  exercise  of  the  legislative  power  in  question  is  not 
proJiihited  to  Congress  by  the  constitution.  It  is,  therefore, 
included  among  the  legislative  powers  of  Congress,  one  of 
which  is  to  make  all  laws  which  are  necessary  and  proper 
for  carrying  into  execution  all  the  other  powers  vested  in 
itself. 

F.  Congress  as  the  legislature  of  a  sovereign  nation, 
being  expressly  granted  certain  great  legislative  powem  re- 
lating to  civil  and  military,  national  and  international,  sub- 
jects of  a  sovereign  nature,  one  of  which  is  especially  the 
power  of  making  all  laws  necessary  and  proper  for  carrying 
into  execution  all  the  other  powers  vested  in  itself,  and 
being  clearly  authorized  as  incident  to  those  great  powers 
to  bind  private  individuals  to  obey  all  its  laws  and  to  pro- 
hibit them  from  disobeying  the  same  under  penalties  of 
punishment ;  and  the  i)ower  to  bind  judicial  courts  to  obey 
all  laws  and  to  prohibit  them  from  criticising  any  law  and 
declaring  it  void,  being  one  of  the  powers  belonging  to 
sovereignty  in  other  civilized  nations  and  not  expressly 
withheld  from  Congress  hy  the  constitution;  it  follows  as  an 
irresistible  conclusion  that  binding  all  judicial  courts  to  obey 
all  congressional  laws  and  prohibiting  them  from  criticising 
any  law  and  declaring  it  void,  is  an  appropriate  means  con- 
ducive and  plainly  adapted  to  the  execution  of  the  un- 
doubted powers  of  Congress,  consistent  with  the  letter  and 
spirit  of  the  constitution,  and,  therefore,  within  the  meaning 
of  that  instrument  necessary  and  proper  for  carrying  into 
execution  the  powers  vested  by  the  constitution  in  Congress 
as  the  legislative  department  of  the  government  of  the 
United  States. 


INTRODUCTION.  39 


No.  a 

Tliat  the  foregoing  considerations  prone  the  existence  of  a 
second  class  of  extraordinary  reasons  for  afresh  discus- 
sion of  the  subject  of  this  Essay, 

If  then  the  respective  doctrines  of  the  Supreme  Court  and 
Mr.  McMurtrie  be  wholly  true,  it  is  also  true  that  the  con- 
stitution gives  to  Congress  the  power  to  make  a  law  prohib- 
iting the  Supreme  and  Inferior  Courts  from  declaring  any 
acts  of  Congress  to  be  unconstitutional  and  void. 

Few  American  lawyers  will  accept  as  true  any  conclusion 
affirming  such  a  proposition.  It  is  safe  to  say  that  the  Su- 
preme Courts  both  of  the  United  States  and  of  the  several 
states  would,  without  exception,  deny  the  truth  thereof. 

The  proposition  is  certainly  a  great  error;  but  the  greater  its 
error,  the  more  strongly  does  it  support  the  contention  of  the 
present  chapter  as  to  the  existence  of  a  second  class  of  extraor- 
dinary reasons  for  a  fresh  discussion  of  the  subject  of  this 
Essay.  The  erroneous  proposition  is  a  conclusion  correctly 
reached  in  reasoning  from  the  premises.  The  premises  consist 
of  two  germane  doctrines  relating  respectively  to  legislative 
powers  and  to  judicial  power  under  the  constitution.  The 
doctrines  are  of  the  highest  interest,  both  theoretically  and 
practically,  to  the  United  States.  Both  pronounce  upon  the 
constitutional  law  of  all  other  civilized  governments  besides 
that  of  the  United  States.  Some  part  or  parts  of  one  or  both 
these  doctrines  must  be  error,  if  the  conclusion  be  error. 
If  the  conclusion  be  absurd,  there  is  2,reductio  ad  ahsurdum 
of  some  part  or  parts  of  one  or  both  the  premised  doctrines. 
But  whether  the  conclusion  be  error  only,  or  downright 
absurdity,  its  correct  deduction  from  the  premises  fully 
sustains  the  writer's  present  contention  ;  namely,  that  there 
are  extraordinary  reasons  for  a  fresh  discussion  of  the  sub- 
ject of  this  Essay,  which  are  concerned  especially  with  the 
decision  in  Juilliard  v.  Greenman  and  have  their  origin  in  it 
and  the  controversy  caused  by  it. 

Some  lawyers  may  be  surprised  that  the  decision  in  Juilli- 


40  INTRODUCTION. 

ard».  Greenman  and  Mr.  McMurtrie's  defence  thereof  should, 
when  taken  together,  be  capable  of  producing  such  conse- 
quences. Others,  however,  will  not  be  surprised  that  so 
strong  a  decision  as  Juilliard  v.  Greenman  should  produce 
strange  results.  The  following  will  elucidate  this  observa- 
tion. 

Hepburn  n.  Griswold,  8  Wallace  603,  was  a  strong  decis- 
ion. It  declared  that  Congress  could  issue  bills  of  credit 
and  did  not  deny  that  it  could  make  them  a  legal  tender  for 
future  debts.  It  denied  only  that  it  could  make  them  a 
legal  tender  for  pre-existing  debts.  Knox  v.  Lee,  12  Wal- 
lace 457,  was  a  stronger  decision.  It  held  that  Congress 
could  make  bills  of  credit  a  legal  tender  in  payment  of  pre- 
existing debts,  in  certain  cases  like  that  before  the  court. 
Next  came  Juilliard  v.  Greenman,  110  U.  S.  Reports  421,  the 
strongest  decision  of  all.  It  invoked  generally  all  the  legis- 
lative powers  belonging  to  sovereignty  in  Europe  and  de- 
cided particularly  that  Congress  can  make  bills  of  credit  a 
legal  tender,  for  both  future  and  pre-existing  debts,  in  all 
cases  whatsoever. 

This  series  of  decisions  thus  gained  strength  as  it  pro- 
ceeded, until  either  very  great  or  too  great  progress  was 
made  and  more  invited.  Now,  Juilliard  v.  Greenman  places 
great  reliance  on  the  English  case  of  Austria  v.  Bay.  The 
following  remark  of  an  eminent  English  judge  upon  English 
decisions  progressing  in  a  series  like  the  legal  tender  cases 
is,  therefore,  in  point. 

In  1861,  Lord  Chief  Justice  Erie  said  to  Nassau  W.  Senior, 
then  a  master  in  chancery,  when  they  met  in  travelling  on 
the  continent : 

'^  A  great  part  of  the  law  made  by  judges  consists  of 
"  strong  decisions,  and  as  one  strong  decision  is  a  precedent 
"  for  another  a  little  stronger,  the  law  at  last  on  some  matters 
''becomes  such  a  nuisance,  that  equity  intervenes  or  an  act 
"of  parliament  must  be  passed  to  sweep  the  whole  away." 

These  are  the  speaker' s  precise  words,  the  manuscript  re- 
port being  corrected  by  himself.* 

*  See  Conversations  during  the  Second  Empire  by  N.  W.  Senior  (London, 
1880),  I.  321. 


INTRODUCTION".  41 

The  decisions,  which  Lord  Chief  Justice  Erie  condemned, 
were  remarkable  for  strong  will,  not  for  strong  reason.  He 
would  have  agreed  with  Lord  Mansfield  in  praising  deci- 
sions remarkable  for  strong  reason :  see  Lord  Mansfield's 
letter  to  Chief  Justice  McKean,  prefixed  to  1  Dallas. 

The  strong  decisions  criticised  by  Lord  Chief  Justice  Erie 
were  made  by  an  abuse  of  the  proceeding  to  similars  ex- 
pounded in  Dig.  lib.  1.  tit.  3,  I.  10, 12.  There  the  cases  are 
explained  in  which,  Z5,  quijurisdictionipraeest,  ad  similia 
procedere,  atque  ita  jus  dicere,  debet. 

Long  and  strong  steps  in  legal  theory  have  been  made  in 
proceeding  from  the  express  power  of  borrowing  money  to 
an  implied  and  similar  power  of  forcing  private  parties  to 
make  loans  because  the  party  borrowing  is  sovereign.  How 
many  more  long  and  strong  steps  in  legal  theory  are  required 
to  proceed  from  the  various  legislative  powers  expressly 
granted,  to  an  implied  and  similar  power  of  prohibiting 
courts  from  declaring  void  any  legislation,  because  the  leg- 
islature is  sovereign  ?  The  answer  need  now  surprise  no  one. 
Not  more  such  steps  are  required  in  theory  than  are  possi- 
ble, if  the  respective  doctrines  of  the  Supreme  Court  and 
of  Mr.  McMurtrie  be  both  wholly  true. 

It  is  in  point  here  to  quote  the  following  passage  from 
Madison's  debates  of  the  convention  which  framed  the  con- 
stitution of  the  United  States  (5  Elliot's  Debates,  429).  On 
August  15th,  1787,  he  records  that : 

"  Mr.  Mercer  heartily  approved  the  motion.  It  is  an  ax- 
'*  iom  that  the  judiciary  ought  to  be  separate  from  the  leg- 
"  islative  ;  but  equally  so,  that  it  ought  to  be  independent  of 
*'that  department.  The  true  policy  of  the  axiom  is,  that 
*' legislative  usurpation  and  oppression  maybe  obviated. 
"  He  disapproved  of  the  doctrine,  that  the  judges,  as  ex- 
^'positors  of  the  constitution,  should  have  authority  tt3 
*' declare  a  law  void.  He  thought  laws  ought  to  be  well 
"and  cautiously  made  and  then  to  be  uncontrollable.''^ 


42  INTRODUCTION. 


CHAPTER  TV. 

Of  tlieplan  of  tliisHssay  and  its  division  into  Histor- 
ical and  Textual  Commentaries. 

JVo.  1.  Of  the  Historical  Commentary. 

No.  '2.  Of  Part  1.  of  the  Historical  Commentary. 

No.  3.  Of  Part  II.  of  the  same. 

No.  Jf.  Of  Part  III.  of  the  same. 

No.  5.  Of  Part  IV.  of  the  same. 

No.  6.  Of  the  Textual  Commentary. 

No.  7.  Of  the  relation  of  the  Textual  Commentary  to  the 
exposition  of  the  Framers''  intentions. 

No.  8.  Further  observations  upon  the  Textual  Commen- 
tary. 

No.  9.  Of  the  opinion  in  Marhury  v.  Madison  in  connec- 
tion with  the  Textual  Commentary. 


This  Essay  will  be  divided  into  two  branches,  the  Histor- 
ical Commentary  and  the  Textual  Commentary.  The  former 
will  treat  of  the  history  of  the  judicial  competency  which  is 
the  subject  of  this  Essay,  in  so  far  as  is  necessary.  The 
latter  will  examine  the  texts  of  the  constitution  which  are 
especially  concerned.  It  is  intended  to  be  an  exposition  of 
the  law  of  the  subject,  according  to  the  express  and  precise 
meaning  of  those  texts. 

No.  1. 
Of  the  Historical  Commentary. 

The  Historical  Commentary  will  be  divided  into  four 
parts.  It  will  discuss  the  subject  in  connection  with :  (1), 
foreign  laws  existing  before  and  after  1787  ;  (2),  the  laws  of 
certain  states  of  the  Union  in  and  before  1787  ;  (3),  the  his- 
torical antecedents  of  the  constitutional  texts;  and  (4),  the 
intentions  of  the  Framers  of  the  constitution. 


INTRODUCTION.  43 

No.  2. 

Of  Part  I.  of  the  Historical  Commentary. 

The  foregoing  chapters  show  that  there  are  two  classes  of 
extraordinary  reasons  for  a  fresh  discussion  of  the  subject 
of  this  Essay.  Tlie  reasons  belonging  to  the  second  class 
show  the  necessity  of  an  investigation  of  foreign  laws  for 
light  on  the  subject.  Such  an  investigation  should  include 
the  laws  of  certain  European  states  and  unions  of  states  and 
an  examination  of  the  Roman  and  Canon  laws.  It  should 
discriminate  between  the  different  periods  in  the  history  of 
the  different  laws  investigated.  Especially,  should  it  dis- 
tinguish between  what  was  law  abroad  before,  and  what 
after,  1787,  the  date  when  the  U.  S.  constitution  was  framed 
in  Philadelphia. 

Such  an  investigation  of  foreign  laws  is  imperatively  nec- 
essary since  the  making  of  the  decision  in  Juilliard  v.  Green- 
man.  Since  the  opinion  in  that  case,  foreign  laws  may  be 
freely  appealed  to  to  decide  constitutional  questions.  In  it, 
a  Hungarian  case  of  royal  power  is  apx)ealed  to  in  order  to 
support  an  implied  power  of  making  U.  S  bills  of  credit  a 
legal  tender,  and  French  law  is  relied  upon  in  order  to  ex- 
tend such  legal  tender  power  to  previously  existing  as  well 
as  future  contracts.*  Thus  an  implied  power  of  making  a 
law  impairing  the  obligation  of  contracts  is  obtained  for 
Congress.  This  climax  of  implication  is  reached  by  group- 
ing a  Hungarian  case  with  a  French  authority. 

In  defending  the  decision  of  Juilliard  v.  Greenman,  Mr. 
McMurtrie  cites  Yattel  and  invokes  the  authority  of  a  Polish 
case  upon  the  law  of  coined  money  to  support  one  of  the 
links  of  his  argument,  f  This  is  done  in  defence  of  a  legis- 
lative power.  In  discussing  the  nature  of  judicial  power,  he 
maintains  that  a  power  of  declaring  laws  to  be  void  for  any 
reason  whatsoever  is  utterly  unknown  to  all  foreign  laws. 
The  weight  of  foreign  laws  upon  this  matter  is  so  great  that 

*  See  pages  447,  449,  of  110  U.  S.  Reports. 

t  See  his  page  23.  Contrast  Poor's  Charters  and  Constitutions,  page  1890, 
paragraph  3  from  bottom. 


44  INTRODUCTION. 

it  must  have  decided  his  judgment  against  such  a  power  at 
any  time  before  Marshall  wrote  his  opinion  in  Marbury  v. 
Madison.  Marshall's  reasoning  is  held  to  be  pure  implica- 
tion, but  its  force  is  declared  to  be  so  great  that  it  triumphs 
over  all  arguments  from  foreign  laws  to  the  contrary.  Be- 
fore Marbury  v.  Madison,  therefore,  the  j udicial  power  and  the 
legislative  powers  delegated  by  the  constitution  were  in  the 
same  predicament,  as  far  as  foreign  doctrines  were  concerned. 
Implication  against  implication,  the  foreign  doctrines  then 
predominated  as  to  the  latter  as  well  as  to  the  former.  It  is 
only  the  force  of  Marshall's  extraordinary  genius  which 
has  made  the  change,  if  Mr.  McMurtrie  be  correct. 

Both  the  court  and  Mr.  McMurtrie  abstain  from  going  into 
detail,  in  appealing  to  foreign  laws  relating  to  the  legislative 
powers  discussed  by  the  former  and  the  judicial  power  ex- 
pounded by  the  latter.  Both  group  foreign  laws  together 
and  generalize  from  the  mass.  This  is  going  too  far,  if 
foreign  doctrines  be  objectionable.  If  they  be  unobjection- 
able, it  is  not  going  far  enough.  No  appeal  to  foreign  laws 
can  be  final,  unless  such  laws  be  investigated  in  detail.  If 
foreign  doctrines  are  to  decide,  or  to  have  a  share  in  deciding 
constitutional  questions,  the  different  foreign  laws  should  be 
examined  seriatim.  English  law,  Roman  law,  French  law, 
German  law,  and  other  laws  should  be  investigated  sep- 
arately. When  necessary,  different  periods  in  each  law  and 
different  branches  thereof  should  be  discriminated.  By  so 
proceeding,  when  truths  are  ascertained,  they  can  be  stated 
with  precision.  When  errors  are  committed,  they  can  be 
attacked  in  detail.  The  best  of  methods  can  not  afford  se- 
curity against  error  in  so  wide  a  field  of  investigation.  But 
a  method  of  detail  can  prevent  confusion  and  bring  the  in- 
vestigator nearer  to  the  truth  :  citius  emergit  Veritas  ex 
err  ore  quam  ex  confusione."^ 

Such  a  method  wiU  be  that  followed  in  Part  I.  of  the  His- 
torical Commentary,  which  will  investigate  the  most  im- 
portant foreign  laws  bearing  on  the  subject.  These  will  be 
studied  in  detail.     Each  law  will  be  examined  with  refer- 

*  Bacon  :  Novum  Organum,  II.  aph.  20  ;  Bacon's  Works,  Spedding's  edition, 
I.  260. 


INTRODUCTION.  45 

ence  to  the  relation  of  judicial  power  to  legislation  im- 
peached as  contrary  to  constitutional  or  other  right,  written 
or  unwritten.  Each  law  will  be  examined  in  order  to  as- 
certain whether  therein  can  be  found  a  constitutional  or 
other  fundamental  rule  of  binding  right,  which  is  of  such  a 
nature  that  the  question  of  contrariety  may  become  a  judi- 
cial one.  The  investigation  will  include  the  further  ques- 
tion, whether,  according  to  any  foreign  law,  legislation  ju- 
dicially ascertained  to  be  contrariant  to  a  constitution  or 
other  rule  of  binding  right,  should  therefore  be  judicially 
regarded  as  null  or  void. 

The  result  of  such  an  investigation  of  foreign  laws  will, 
it  is  contended,  show  that,  when  Americans  invented  written 
constitutions  in  the  last  century,  they  did  not  create  an  un- 
precedented novelty  in  framing  them  upon  a  principle  that 
judiciaries  might  decide  questioned  legislation  to  be  con- 
trariant to  a  constitution  and  hold  it  therefore  void :  that 
is  to  say,  that  it  might  be  a  judicial  and  not  an  extrajudi- 
cial question  whether  such  legislation  was  so  contrariant  or 
not.  But  on  the  contrary,  that  there  were  then  important 
precedents  in  Europe  for  such  a  judicial  institution.  Long 
before  American  independence,  there  were  in  Europe  un- 
written systems  of  public  law,  according  to  which  legisla- 
tion might  sometimes  be  judicially  decided  to  be  contrariant 
to  a  binding  right  of  superior  strength  to  the  legislative 
power  exercised.  Thus,  whether  legislators  had  or  had  not 
proceeded  secundum  jus  potestatls  suce^  and,  whether  chal- 
lenged legislation  was  consonant  or  accordant  to  binding 
right,  might  sometimes  be  judicial  and  not  extrajudicial 
questions. 

No.  3. 

Of  Part  II.  of  the  Historical  Commentary. 

The  next  part  of  the  Historical  Commentary  will  relate 
to  American  legal  history.  It  will  discuss  the  relation  of 
judicial  power  to  unconstitutional  legislation  in  certain  of 
the  states  before  and  during  the  confederation.  The  legal 
history  of  certain  of  the  states  has  an  important  bearing  on 


46  INTRODUCTION. 

the  subject  of  this  Essay.  It  will  show  that  the  men  who 
framed  the  U.  S.  constitution  did  not  lead  the  way  to  the  ju- 
dicial competency  under  discussion,  but  followed  the  route 
indicated  by  judicial  decisions  in  certain  of  the  states. 

No.  4. 
Of  Part  III.  of  the  Historical  Commentary. 

An  historical  investigation  of  the  constitutional  texts  con- 
cerned does  not  begin  with  the  meeting  of  the  Framers  in 
convention.  It  must  examine  the  public  historical  antece- 
dents of  those  texts.  These  antecedents  are  other  texts, 
which  were  printed  and  published  before  the  Framers  met, 
and  with  which  they  were  familiar.  Under  existing  cir- 
cumstances, this  Essay  would  be  actually  incomplete,  if  this 
branch  of  constitutional  history  were  forgotten. 

The  investigation  of  the  historical  antecedents  of  the  texts 
of  the  constitution,  which  are  herein  concerned,  will  be  Part 
III.  of  the  Historical  Commentary. 

No.  5. 
Of  Part  IV.  of  the  Historical  Commentary. 

This  Essay  maintains  that  the  text  of  the  constitution  ex- 
pressly establishes  a  certain  judicial  competency  relating 
to  unconstitutional  legislation,  and  does  so  by  using  words 
and  phrases  which  are  technical  terms  of  law  with  one  ex- 
ception only.  If  this  be  so,  the  Framers  of  the  constitution 
must  have  expressly  intended  what  such  language  expressly 
means.  To  deny  this,  would  be  contrary  to  common  sense. 
It  is  true  that  suggestions  have  been  quite  often  made  in 
print  that  men  have  built  wiser  than  they  knew  in  build- 
ing structures  less  visible  than  stone  houses.  But  nobody 
has  ever  thought  that  the  framers  of  a  written  constitution 
could  build  wiser  than  they  knew,  if  they  used  technical 
terms  of  law  without  knowing  the  meaning  thereof. 

The  recorded  evidence  of  the  debates  and  proceedings  of 
the  Framers  must,  therefore,  be  examined  to  ascertain  what 
light  they  throw  upon  the  relation  of  judicial  power  to 


INTRODUCTION.  47 

constitutional  legislation.  A  full  examination  will  be  made 
and  the  result  will,  it  is  contended,  show  that  the  Framers 
expressly  intended  what  is  expressly  imported  by  the  con- 
stitutional text,  as  the  writer  reads  it.  That  is  to  say, 
his  two  contentions  as  to  the  express  meaning  of  the  text 
and  the  express  intentions  of  the  Framers  thereof,  are  in 
full  harmony  with  each  other.  Those  jurists  who  main- 
tain that  the  judicial  competency  under  discussion  is  im- 
plied, but  not  expressed,  by  the  text,  must  do  one  of  two 
things.  They  must  either  show  that  the  writer  misunder- 
stands what  the  Framers  intended,  or  prove  that  the  latter 
did  not  select  apt  words  for  expressing  their  acknowledged 
intentions. 

No.  6. 
Of  IJie  Textual  Commentary. 

The  second  branch  of  this  Essay  will  be  the  Textual  Com- 
mentary. The  observations,  which  are  now  in  place  upon 
it,  have  been  anticipated  to  a  great  extent  in  previous  re- 
marks. In  the  Textual  Commentary  the  texts  of  the  con- 
stitution, which  are  especially  concerned,  will  be  considered 
in  detail.  It  is  the  most  important  portion  of  the  work, 
and  the  one  to  which  the  other  parts  lead  up. 

This  branch  of  the  Essay  will  consider  the  relation  of  ju- 
dicial power  to  unconstitutional  legislation  in  a  commen- 
tary upon  the  particular  texts  concerned.  It  will  endeavour 
to  show  that  the  constitution  contains  express  texts  pro- 
viding for  judicial  competency  to  decide  questioned  leg- 
islation to  be  constitutional  or  unconstitutional  and  to  hold 
it  valid  or  void  accordingly.  This  Textual  Commentary  is 
thus  concerned  with  any  legislation  conflicting  with  the 
constitution  of  the  United  States,  whether  it  be  such  as  is 
made  by  Congress,  or  such  as  proceeds  in  any  form  from  a 
state.  It  is  concerned  with  the  judiciary  of  the  United 
States  and  the  judiciaries  of  the  several  states  in  so  far  as 
they  have  any  constitutional  relations  to  such  unconstitu- 
tional legislation. 

Whether  impeached  legislation  be  constitutional  or  un- 


48  INTRODUCTION. 

constitutional,  is  a  question  which  can  be  asked  according 
to  any  constitution,  written  or  unwritten,  American  or  Eu- 
ropean. But  the  second  question, — whether  the  previous 
question  is  a  judicial  or  an  extrajudicial  one,  can  never  be 
asked  according  to  some  constitutions.  According  to  them, 
any  judicial  tribunal  attempting  to  decide  the  previous  ques- 
tion would  certainly  proceed  extrajudicialiter.  The  Text- 
ual Commentary  will  endeavour  to  show  that  the  U.  S. 
constitution  contains  express  terms  providing  that  the 
previous  question  may  be  a  judicial  and  not  an  extrajudi- 
cial one. 

It  is  an  opinion  that  has  received  the  greatest  amount  of 
acquiescence  that  the  constitution  implies,  but  does  not  ex- 
press, the  existence  of  judicial  competency  to  declare  legisla- 
tion unconstitutional  and  so  void.  The  writers  most  import- 
ant contention  is  that  such  a  competency  is  expressly  pro- 
vided for  by  constitutional  texts.  This  expressage  of  mean- 
ing is  due  to  the  fact  that  the  constitution  legislates  upon 
the  subject  by  using  technical  legal  terms.  The  meanings 
of  technical  terms  in  all  sciences  are  express  ;  and  it  is  for 
that  reason  that  such  terms  are  selected  by  those  who  decide 
to  use  them.  This  head  of  the  subject  has  been  enlarged 
upon  in  Chapter  1.  (see  p.  4).  What  is  there  said,  is  again 
called  to  the  reader's  attention  in  connection  with  the  nature 
of  the  Textual  Commentary. 

It  may  seem  strange  at  this  date,  when  the  constitution  is 
more  than  a  century  old,  that  it  should  be  possible  to  con- 
tend that  the  express  meaning  of  any  portion  of  its  text  is 
not  universally  recognized.  Strange  as  the  fact  may  be,  it 
is  not  as  much  so  as  a  very  ancient  fact  well  known  through- 
out all  Christendom.  Eastern  and  Western  Christians  have 
been  divided  for  more  than  a  thousand  years  as  to  the  ex- 
press meaning  of  a  text  of  a  common  creed.  The  former 
hold  that  the  insertion  of  thej^Z/ogz^^  contradicts  the  express 
meaning  of  the  text.  The  latter  deny  any  such  contradic- 
tion. Thus,  the  East  of  Christendom  asserts  an  express 
meaning  for  a  fundamental  text,  which  the  West  denies. 

The  Textual  Commentary  will  proceed  upon  the  basis  that 
the  written  text  of  the  constitution  can  not  be  altered,  either 


INTRODUCTION.  49 

directly  by  corruption,  or  indirectly  by  misinterpretation. 
No  matter  how  inveterate  and  universal  an  erroneous  inter- 
pretation may  be,  it  can  not  overcome  the  express  meaning 
of  the  text  of  the  constitution.  That  text  is  a  thing  which 
can  never  become  obsolete  ;  quia  per  non  usum  etiam  per 
mille  annos  nunquam  iollitur. 

No.  7. 

Of  the  relation  of  tJie  Textual  Commentary  to  the  exposi- 
tion of  the  Framers'  intentions. 

The  exposition  of  the  meaning  of  the  constitutional  text 
in  the  Textual  Commentary  harmonizes  with  the  exposition 
of  the  intentions  of  the  Framers  in  the  Historical  Commen- 
tary. The  writer's  method  will,  however,  be  to  establish 
the  truth  of  both  expositions  separately  and  independently 
of  each  other.  Readers  will  not  be  asked  to  rely  upon  his 
views  of  the  Framers'  intentions  in  order  to  be  convinced  of 
his  understanding  of  the  constitutional  text.  His  object  is 
to  convince  readers  of  every  school  of  opinion.  He,  there- 
fore, must  have  regard  to  the  scruples  of  those  jurists  who 
refuse  to  be  influenced  by  anything  in  the  proceedings  and 
debates  of  the  Framers,  either  because  they  were  kejjt  secret 
for  many  years  after  the  adoption  of  the  constitution,  or  be- 
cause they  are  held  to  be  without  authority  in  expounding 
its  text.  These  gentlemen  are  a  very  important  dass  of  con- 
stitutional  lawyers,  whether  they  be  few  or  many  in  number. 
They  include  Mr.  McMurtrie,  and  it  is  necessary  to  meet 
them  on  their  own  ground.  Nowhere  else  can  they  be  con- 
vinced. The  Textual  Commentary  will,  therefore,  avoid  in- 
troducing anything  which  they  may  feel  bound  to  object  to. 

There  is  another  class  of  constitutional  lawyers,  who  re- 
gard the  intentions  of  the  Framers  as  matters  of  great  weight 
in  expounding  the  constitution.  They  roust  be  numerous  ; 
for  they  include  Story,  who  did  not  hesitate  to  make  free 
use  of  the  Journal  of  the  Convention.  Madison's  Debates 
he  could  not  use ;  for  they  were  made  public  after  the  first 
edition  of  his  Commentaries,  which  was  the  only  one  pub- 
lished in  his  lifetime.  The  gentlemen  of  this  school  of 
4  0. 


50  INTRODUCTION. 

opinion  naturally  expect  that  the  debates  and  proceedings 
of  the  convention  should  be  carefully  studied.  Their  ex- 
pectations can  not,  under  the  circumstances,  be  disappointed. 
They  will  find  that  the  writer's  exposition  of  the  Framers' 
intentions,  and  his  exposition  of  the  meaning  of  the  text, 
are  supplementary  to  each  other.  While  both  are  separate 
from  and  independent  of  each  other,  they  are  in  harmony 
and  are  so  written  that  they  may  be  readily  compared  to- 
gether and  fitted  to  each  other.  The  hope  of  meeting  the 
requirements  of  two  such  dift'erent  classes  of  readers  is, 
therefore,  entertained. 

It  is  also  hoped  that  those  readers  will  be  satisfied,  who 
regard  the  proceedings  and  debates  of  the  Framers  as,  it 
would  appear,  the  U.  S.  Supreme  Court  regards  them.  In 
Juilliard  d.  Greenman,  on  page  444  of  110  U.  S.  Reports,  the 
court  only  goes  so  far  as  to  maintain  that  ''too  much 
weight "  should  not  be  given  to  the  debates  and  votes  in  the 
convention  upon  such  a  question  as  that  before  them.  In 
Hauenstein  v.  Lynham  in  10  Otto,  489,  the  court  says,  in 
discussing  Ware  v.  Hylton,  3  Dallas,  199 : 

''  We  have  quoted  from  the  opinion  of  Mr.  Justice  Chase 
"in  that  case,  not  because  we  concur  in  everything  said  in 
''the  extract,  but  because  it  shows  the  views  of  a  powerful 
"legal  mind  at  that  early  period,  when  the  debates  in  the 
"convention  which  framed  the  constitution  must  have  been 
"fresh  in  the  memory  of  the  leading  jurists  of  the  country." 

This  is  said  of  Judge  Chase's  opinion,  although  it  was  de- 
livered before  the  proceedings  and  debates  of  the  Framers 
were  published  in  any  form,  and  although  he  was  not  a  mem- 
ber of  the  convention. 

No.  8. 

Further  observations  upon  the  Textual  Commentary. 

According  to  Mr.  H.  C.  Lodge,  there  were  formerly  two 
modes  of  interpreting  the  constitution,  but  now  one  of  them 
has  become  obsolete.*  According  to  Judge  Baldwin,  there 
are  three  modes,  f    Possibly  there  are  four  or  more.     It  is, 

*  In  the  preface  to  his  edition  of  Hamilton's  Works, 
t  Constitutional  Views,  36,  37. 


INTKODUCTION.  51 

however,  tinnecessary  here  to  enter  into  so  general  a  ques- 
tion. Remarks  upon  certain  particular  points  are  alone 
necessary. 

First.  This  Essay  is  a  legal  treatise.  It  is  intended  for 
"the  learned  reader,"  to  whom  Story  addresses  his  Com- 
mentaries :  see  his  volume  2,  page  430,  first  edition. 

Secondly,  The  frequent  reference  to  foreign  laws  herein 
made  is  absolutely  necessary  in  a  work  so  intimately  related 
to  the  opinion  in  the  case  of  Juilliard  v.  Greenman  as  here- 
inbefore mentioned.  Tliat  opinion  appeals  to  foreign  notions 
of  powers  belonging  to  sovereignty,  in  order  to  interpret  the 
constitution  upon  a  disputed  question  of  the  greatest  mo- 
ment. Tlie  writer  is  compelled  to  do  likewise.  Unknown 
quantities  of  sovereignty  introduced  from  abroad  must  be- 
come known  ;  for,  under  the  circumstances  previously  men- 
tioned, they  cannot  be  disregarded.  Whether  writers  upon 
all  other  heads  of  constitutional  law  are,  or  are  not,  bound  to 
do  likewise  since  Juilliard  v.  Greenman,  is  a  question  which 
need  not  be  discussed. 

Thirdly.  Some  remarks  will  be  made  as  to  the  words, 
"  constitutional,"  and  "  unconstitutional,"  the  last  of  which 
is  on  the  title  page  of  this  Essay.  Neither  adjective  is 
found  in  the  constitution.  The  adverb,  "  constitutionally," 
is,  however,  found  at  the  end  of  the  12th  amendment :  "no 
"person  co/i^^/^i^^/o/zaZZ^/ ineligible  to  the  office  of  President 
"  shall  be  eligible  to  that  of  Vice  President  of  the  United 
"  States."  A  collation  of  this  text  with  paragraph  5  of 
section  1.  II.  shows  that  the  use  of  the  adverb  "constitution- 
ally "  is  not  to  be  restricted  to  the  cases  arising  under  the 
constitution  which  are  of  a  judicial  nature.  It  must  also  be 
used  in  cases  whose  nature  is  extrajudicial.  What  is  true 
of  that  adverb  ought  consequently  to  be  true  of  the  adjec- 
tives "constitutional"  and  "unconstitutional." 

In  the  following  pages  the  words  "constitutional"  and 
"unconstitutional"  are  applied,  in  a  federal  sense,  both  to 
congressional  legislation  and  to  state  legislation.  In  these 
two  cases,  the  precise  meanings  of  the  words,  according  to 
th«  strict  text,  are  not  identical.  The  use  of  the  two  words, 
as  general  terms  applicable  in  both  cases,  is,  however,  prac- 


62  INTRODUCTIOIT. 

tically  indispensable  in  discussion.  It  is  theoretically  unob- 
jectionable, if  the  precise  differences  of  meaning  in  each  case 
be  ascertained  in  the  course  of  the  commentary  upon  the 
text.  Although  the  word  "  unconstitutional"  is  of  English 
origin,  and  was  applied  in  America  to  acts  of  parliament 
during  the  colonial  period,  such  as  the  stamp  act, — these  cir- 
cumstances have  not  prevented  its  general  use  since  then, 
under  political  systems  very  different  from  the  English,  but 
called  also  by  the  name  of  constitutions.  There  is,  however, 
no  difficulty  about  such  a  use  of  the  word  "unconstitu- 
tional." At  least  there  is  none,  as  long  as  a  word  like 
''extraconstitutional,"  is  not  contrasted  with  it. 

'No.  9. 

0/  the  opinion  in  Marhury  v.  Madison  and  its  relation 
to  the  Textual  Commeiitary. 

The  view  maintained  in  the  Textual  Commentary  is  di- 
rectly opposed  to  that  of  Mr.  McMurtrie  and  those  who 
agree  with  him.  Mr.  McMurtrie  categorically  asserts  that 
the  power  of  a  judicial  court  to  declare  a  law  unconstitu- 
tional and  void,  is  based  exclusively  upon  inference  and  im- 
plication. At  the  same  time,  he  maintains  that  such  a  power 
is  so  fully  and  thoroughly  proved  to  be  constitutional  and 
legal  by  the  opinion  in  Marbury  v.  Madison,  that  no  sane 
man  can  doubt  the  correctness  of  Chief  Justice  Marshall's 
reasoning  therein.  It  is,  therefore,  here  necessary  to  ask 
the  question  whether  it  is  correct  to  say  that  Marshall's 
conclusion  in  favour  of  such  a  power  is  based  exclusively 
upon  inference  and  implication,  and  not  upon  the  express 
import  of  texts  in  the  constitution  ? 

To  this  question,  it  is  first  answered  that  Mr.  McMurtrie' s 
opinion  is  the  general  one.  •  Thus,  Kent  evidently  takes 
it  for  granted  that  Marshall's  reasoning  is  of  the  nature 
attributed  to  it  by  Mr.  McMurtrie.  Kent's  view  of  the 
Chief  Justice's  reasoning  on  the  judicial  competency  in 
question  is  certainly  that  it  consists  of  inference  and  is  not 
based  upon  expressage  of  constitutional  texts.  The  case  of 
Marbury  ?).  Madison  is  reviewed  twice  in  his  Commenta- 


INTRODUCTION.  53 

ries,  Ed.  1,  Yol.  1,  424  and  301.     On  page  424,  he  ob- 
serves : 

"In  Marbury  v.  Madison,  the  subject  was  brought  under 
''the  consideration  of  the  Supreme  Court  of  the  United 
''States,  and  received  a  clear  and  elaborate  discussion.  The 
"power  and  duty  of  the  judiciary  to  disregard  an  unconsti- 
"  tutional  act  of  Congress,  or  of  any  state  legislature,  were 
"  declared  m  a/i  argument  approaching  to  the  precision 
"  and  certainty  of  a  mathematical  demonstration.'''' 

The  precision  and  certainty  of  a  mathematical  demonstra- 
tion, of  course,  means  inference  and  not  a  reliance  upon  ex- 
press texts. 

After  careful  study  of  Marshall's  reasoning,  the  writer 
fully  assents  to  Mr.  McMurtrie's  proposition,  that  that  rea- 
soning is  exclusively  based  on  implication  and  inference. 
So  far,  at  least,  he  fully  agrees  with  Mr.  McMurtrie.  The 
relation  which  such  a  proposition  bears  to  the  plan  of  this 
Essay  is,  however,  too  important  for  it  to  be  accepted  as  true, 
without  a  new  and  special  examination  of  the  reasoning  of 
Marshall.  Moreover,  another  consideration  exists,  which 
of  itself  is  more  than  sufficient  to  justify  any  reader  in  re- 
fusing assent  to  Mr.  McMurtrie's  proposition,  without  a 
special  investigation  of  its  truth.  This  second  consideration 
is  based  upon  an  observation  of  Marshall's  at  the  bar  in 
Ware  v.  Hylton,  on  page  211  of  3  Dallas. 

In  that  case,  as  counsel  for  the  defendant,  Marshall  said  : 
"The  legislative  authority  of  any  country  can  only  be  re- 
" strained  by  its  own  municipal  constitution:  This  is  a 
"principle  that  springs  from  the  very  natui'e  of  society; 
"and  the  judicial  authority  can  have  no  right  to  question 
"  the  validity  of  a  law,  unless  such  a  jurisdiction  is  expressly 
"given  by  the  constitution."  Thus,  at  a  date  anterior  to 
Marbury  v.  Madison,  if  Marshall' s  words  be  taken  literally, 
he  held  that  the  jurisdiction  in  question  could  not  be  im- 
plied ;  and  thought,  as,  it  seems  to  the  writer,  Mr.  McMur- 
trie must  have  thought,  if  the  opinion  in  that  case  had 
never  been  written. 

It  is,  therefore,  doubly  necessary  to  make  a  careful  and 
detailed  examination  of  Marshall's  reasoning  in  that  part 


64  INTRODUCTION. 

of  the  opinion  in  Marbury  v.  Madison,  which  relates  to  the 
constitutional  question.  This  task  will  be  undertaken  in 
the  next  and  final  chapter  of  this  Introduction. 


CHAPTER  Y. 

Of  tliat  part  of  tlie  opinion  in  Marbury  t.  Madison, 
^wliicli  treats  of  the  constitutional  question. 

JVo.  1.  Review  of  that  part  of  the  opinion 
No.  '2.  Continuation. 
No.  3.  Continuation. 

No.  Jf.  Conclusion  drawn  from  the  foregoing  review. 
No.  5.  A  further  consideration  of  MarshalVs  observa- 
tion in  Ware  v.  Hylton, 


This  chapter  will  consist  of  a  review  of  that  part  of  the 
opinion  in  Marbury  v.  Madison,  which  is  devoted  to  the 
consideration  of  the  constitutional  question  involved  in  the 
case. 

No.  1. 

Review  of  that  part  of  the  opinion  in  Marbury  v.  Madi- 
S071,  which  treats  of  the  constitutional  question. 

That  part  of  the  opinion  in  Marbury  v.  Madison,  which 
is  now  reviewed,  is  found  on  pages  176-180  of  1  Cranch 
and  begins  thus : 

"The  question,  whether  an  act  repugnant  to  the  consti- 
"  tution,  can  become  the  law  of  the  land,  is  a  question  deeply 
"interesting  to  the  United  States ;  but,  happily,  not  of  an 
"intricacy  proportioned  to  its  interest.  It  seems  only  nec- 
*'essary  to  recognize  certain  principles,  supposed  to  have 
"'been  long  and  well  established,  to  decide  it." 


INTRODUCTION.  55 

Here  Marshall  puts  what  he  holds  to  be  the  question  at 
issue.  As  he  states  that  question,  it  is  whether  an  act  of 
Congress  repugnant  to  the  constitution  can  become  the  law 
of  the  land.  He  does  not  say  one  of  "the  laws  of  the 
Union,"  which  words  are  used  in  clause  15  of  Section  8,  I. 
The  words  '4aw  of  the  land"  are  only  to  be  found  in  para- 
graph 2,  VI.*  He  then  proceeds  to  the  general  portion  of 
this  part  of  the  opinion. 

"  That  the  people  have  an  original  right  to  establish,  for 
"their  future  government,  such  principles  as,  in  their  opin- 
"ion,  shall  most  conduce  to  their  own  happiness,  is  the 
*'  basis  on  which  the  whole  American  fabric  has  been  erected. 
"The  exercise  of  this  original  right  is  a  very  great  exertion ; 
"nor  can  it  nor  ought  it  to  be  frequently  repeated.  The 
"principles,  therefore,  so  established  are  deemed  funda- 
"  mental.  And  as  the  authority,  from  which  they  proceed 
"is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
"permanent. 

"This  original  and  supreme  will  organizes  the  govem- 
"emment,  and  assigns  to  different  departments  their  re- 
"spective  powers.  It  may  either  stop  here;  or  establish 
* '  certain  limits  not  to  be  transcended  by  those  departments. ' ' 

The  above  propositions  are  postulates  to  be  used  in  mak- 
ing the  inferences  following.  They  do  not  contain  quota- 
tions from  the  text  of  the  constitution.  Their  only  relation 
to  that  text  is  that  of  things  presumed  or  presupposed 
thereby.  Such  presumptions  are  not  things  expressly  men- 
tioned in  the  text  of  the  constitution. 

"  The  government  of  the  United  States  is  of  the  latter 
'^  desci'iption.  The  powers  of  the  legislature  are  defined 
"  and  limited ;  and  that  those  limits  may  not  he  mistaken 
"  or  forgotten,  the  constitution  is  toritteny 

This  is  a  postulate  to  be  used  in  making  the  inferences 
following.  No  text  of  the  constitution  is  quoted.  That  it 
depends  upon  inference,  and  not  upon  the  express  meaning 
of  texts,  is  shown  in  No.  2  of  this  chapter. 

*  Is  an  act  of  Congress  repugnant  to  the  constitution  in  the  following  case  ? 
Its  contents  are  not  repugnant  to  the  constitution.  It  is,  however,  a  question 
whether  it  has  been  passed  according  to  the  forms  prescribed  by  the  constitu- 
tion. If  this  question  be  answered  in  the  negative,  the  act  of  Congress  is 
certainly  unconstitutional ;  but  is  such  unconstitutionality  covered  by  the 
phrase  "  repugnant  to  the  constitution. " 


56  INTEODUCTION. 

*'To  what  purpose  are  i)owers  limited,  and  to  what  pnr- 
*'  pose  is  that  limitation  committed  to  writing  ;  if  these  lim- 
"its  may,  at  any  time,  be  passed  by  those  intended  to  be 
''restrained?  The  distinction  between  a  government  with 
''limited  and  unlimited  powers  is  abolished,  if  those  limits 
"do  not  confine  the  persons  on  whom  they  are  imposed, 
"and  if  acts  prohibited  and  acts  allowed  are  of  equal  obli- 
"  gation.  It  is  a  proposition  too  plain  to  be  contested,  that 
"the  constitution  controls  any  legislative  act  repugnant  to 
"it,  or,  that  the  legislature  may  alter  the  constitution  by 
"an  ordinary  act. 

' '  Between  these  alternatives  there  is  no  middle  ground. 
"The  constitution  is  either  a  superior,  paramount  law,  un- 
"  changeable  by  ordinary  means,  or  it  is  on  a  level  with  or- 
"dinary  legislative  acts,  and  like  other  acts,  is  alterable 
"  when  the  legislature  shall  please  to  alter  it." 

This  is  a  dilemma,  at  which  the  reasoning  has  arrived,  by 
proceeding  through  a  series  of  inferences  from  the  postu- 
lates above  mentioned. 

"  If  the  former  part  of  the  alternative  be  true,  then  a  leg- 
"  islative  act  contrary  to  the  constitution  is  not  law :  if  the 
"latter  part  be  true,  then  written  constitutions  are  absurd 
"attempts,  on  the  part  of  the  people,  to  limit  a  power  in 
"its  own  nature  illimitable." 

That  is  to  say,  if  the  first  horn  of  the  dilemma  be  assumed 
to  be  true,  it  must  be  inferred  that  an  unconstitutional  act 
of  legislation  is  not  law  ;  but  if  the  second  horn  be  assumed 
to  be  true,  a  conclusion  must  necessarily  be  inferred,  which 
reduces  such  an  assumption  to  an  absurdity. 

"  Certainly  all  those  who  have  framed  written  constitu- 
"  tions  contemplate  them  as  forming  the  fundamental  and 
^'paramount  law  of  the  nation^  and  consequently  the 
'^theory  of  every  such  government  must  he^  that  an  act  of 
''the  legislature  repugnant  to  the  constitution  is  voidr 

This  passage  first  asserts  a  fact,  and  then  infers  a  theory 
therefrom,  upon  which  comment  will  be  made  presently. 

"  This  theory  is  essentially  attached  to  a  written  consti- 
"  tution,  and  is  consequently  to  be  considered  by  this  court  as 
"  one  of  the  fundamental  principles  of  our  society.  It  is 
"  not  therefore  to  be  lost  sight  of  in  the  further  considera- 
"  tion  of  this  subject. 

"  If  an  act  of  the  legislature,  repugnant  to  the  constitu- 
"tion,  is  void,  does  it,  notwithstanding  its  invalidity,  bind 
"  the  courts,  and  oblige  them  to  give  it  effect  \    Or,  in  other 


INTRODUCTION".  67 

*' words,  though  it  be  not  law,  does  it  constitute  a  rule  as 
*'  operative  as  if  it  was  a  law  ?  This  would  be  to  overthrow 
*'in  fact  what  was  established  in  theory  ;  and  would  seem, 
''  at  first  view,  an  absurdity  too  gross  to  be  insisted  on.  It 
''  shall,  however,  receive  a  more  attentive  consideration." 

That  is  to  say,  the  inference  so  made  is  one  which  seems 
an  absurdity.  In  the  passage  immediately  following,  he 
proceeds  to  demonstrate  that  this  absurdity  is  not  merely 
apparent,  but  real  and  certain. 

''It  is  emphatically  the  promnce  and  duty  of  the  judic 
'  ial  department  to  say  what  the  law  is.     Those  who  ap- 
''ply  the  rule  toparticular  cases,  must  of  necessity  expound 
'  and  interpret  that  rule.     If  two  laws  conflict  with  each 
'  other,  the  courts  must  decide  on  the  operation  of  each. 

'*So,  if  a  law  be  in  opposition  to  the  constitution;  if 
'  both  the  law  and  the  constitution  apply  to  a  particular 
'  case,  so  that  the  court  must  either  decide  that  case  con- 
'  f ormably  to  law,  disregarding  the  constitution  ;  or  con- 
'  formably  to  the  constitution,  disregarding  the  law :  the 
'  court  must  determine  which  of  these  conflicting  rales  govern 
'  the  case.     This  is  of  the  very  essence  of  judicial  duty. 

''If  then  the  courts  are  to  regard  the  constitution  ;  and 
'  the  constitution  is  superior  to  any  ordinary  act  of  the  leg- 
'  islature  ;  the  constitution,  and  not  such  ordinary  act,  must 
'  govern  the  case  to  which  they  both  apply. 

''Those  then  who  controvert  the  principle  that  the  con- 
'  stitution  is  to  be  considered,  in  court,  as  a  paramount  law, 
'  are  reduced  to  the  necessity  of  maintaining  that  courts 
'  must  close  their  eyes  on  the  constitution,  and  see  only  the 
'law. 

"  This  doctrine  would  subvert  the  very  foundation  of  all 
'  written  constitutions.  It  would  declare  that  an  act  which, 
'according  to  the  principles  and  theory  of  our  government, 
'  is  entirely  void,  is  yet,  in  practice,  completely  obligatory. 
'It  would  declare,  that  if  the  legislature  shall  do  what 
'is  expressly  forbidden,  such  act,  notwithstanding  the 
'  express  prohibition,  is  in  reality  effectual.  It  would  be 
'  giving  to  the  legislature  a  practical  and  real  omnipotence 
'with  the  same  breath  which  professes  to  restrict  their 
'  powers  within  narrow  limits.  It  is  prescribing  limits,  and 
'  declaring  that  those  limits  may  be  passed  at  pleasure." 

That  is  to  say,  the  apparent  absurdity  above  mentioned  is, 
after  full  consideration,  inferred  by  demonstration  to  be 
actually  the  gross  absurdity  that  it  seemed  to  be,  at  the 
first  view  of  it.     "That  it  thus  reduces  to  nothing  what 


58  INTRODUCTION. 

"we  have  deemed  the  greatest  improvement  on  pol- 
''itical  institutions — a  written  constitution,  would  of  itself 
"  be  sufficient,  in  America  where  written  constitutions  have 
"been  viewed  with  so  much  reverence,  for  rejecting  the  con- 
"struction." 

No.  2. 
Continuation  of  the  review. 

So  much  for  the  first  or  general  part  of  Marshall's  reason- 
ing, which  relates  principally  to  the  nature  of  written  con- 
stitutions in  general.  No  text  of  the  U.  S.  constitution  is 
quoted,  cited,  or  named.  His  successive  conclusions  and 
final  decision  are  reached  only  by  inference.  The  three 
passages  which  have  been  italicized  in  the  above  abstract, 
are  the  only  ones  requiring  additional  remarks  in  this  con- 
nection. The  first  passage  reads  thus  :  ' '  The  government  of 
"  the  United  States  is  of  the  latter  description.  The  powers 
"of  the  legislature  are  defined  and  limited."  This  is  a 
postulate  from  which  inferences  are  made.  The  postulate 
is  itself  an  inference  from  the  constitutional  text,  as  is  proved 
by  the  following  collation  of  two  passages  of  Marshall's  in 
different  judicial  opinions.  Here,  he  says  that  "  the  powers 
"of  the  legislature  are  defined  and  limited.''^  In  Gibbons 
V.  Ogden,  in  9  Wheaton,  189,  after  quoting  the  clause  be- 
ginning, "Congress  shall  have  power  to  regulate  com- 
"  merce  with  foreign  nations,"  he  adds  :  "The  subject  to  be 
"regulated  is  commerce ;  and  our  constitution  being,  as 
"  was  aptly  said  at  the  bar,  one  of  enumeration,  and  not 
''of  definition,  to  ascertain  the  extent  of  the  power  it  be- 
"  comes  necessary  to  settle  the  meaning  of  the  word." 

This  collation  proves  that  neither  of  such  contradictory 
propositions  can  be  expressly  laid  down  in  the  text.  Both 
must  be  inferences  therefrom,  and  one  or  other  an  incorrect 
inference. 

The  second  italicized  passage  is  the  following  sentence  : 
"  Certainly  all  those  who  have  framed  written  constitutions 
"  contemplate  them  as  forming  the  fundamental  and  para- 
"  mount  law  of  the  nation,  and  consequently  the  theory  of 
"every  such  government  must  be,  that  an  act  of  the  legis- 
"lature  repugnant  to  the  constitution  is  void." 


INTRODDCTION.  59 

The  first  part  of  tlie  above  is  tlie  assertion  of  a  fact  rela- 
ting to  the  point  of  view  from  which  framers  of  written  con- 
stitutions, in  general,  have  regarded  their  work.  On  the 
other  hand,  it  is  the  fact  that  men  have  undertaken  to 
frame  or  amend  written  constitutions  and  yet  denied  that 
they  are  always  fundamental  and  paramount  laws.  In  cer- 
tain European  states,  those  framing  written  constitutions 
upon  the  octroy e  or  auctorata  theory,  must  have  done  so. 
According  to  that  theory,  a  written  constitution  is  held  to  be 
granted  as  of  grace  by  an  hereditary  monarch,  vested  with 
sovereignty  by  right  and  law  antecedent  to,  and  independent 
of,  such  constitution. "^  Examples  of  men  so  proceeding 
are  not  confined  to  Europe.  The  statue  of  Seward,  recently 
erected  in  Auburn,  represents  him  as  asserting  the  existence 
of  a  higher  law  than  the  constitution,  f  Most  of  those  oppo- 
nents of  the  fugitive  slave  law,  who  asserted  a  law  higher 
than  the  constitution,  did  not  think  that  that  belief  should 
be  abjured  by  such  of  their  number  as  undertook  in  Con- 
gress and  state  legislatures  to  make  amendments  to  that  in- 
strument. 

Conceding,  however,  the  fact  to  be  as  Marshall  states  it, 
the  theory  he]d  to  be  a  consequence  thereof  (/.  e.  that  a  law 
repugnant  to  a  written  constitution  is  void),  is  purely  a 
matter  of  inference.  It  is  not  only  an  inference,  but  an 
erroneous  inference,  according  to  the  case  of  Rutgers  v. 
Waddington,  which  was  decided  in  New  York  in  1784,  under 
a  written  constitution.  This  was  a  recent  and  important 
case  when  the  Framers  met  in  Philadelphia.  It  is  reviewed 
hereinafter.  On  page  41  of  the  opinion  in  Rutgers  v.  Wad- 
dington,:!^ i^  is  said : 

"  The  supremacy  of  the  legislature  need  not  be  called  into 
''  question  ;  if  they  think  fit  positively  to  enact  a  law,  there 
"is  no  power  which  can  control  them.  When  the  main  ob- 
*'  ject  of  such  a  law  is  clearly  expressed,  and  the  intention 

*  Cf.  H.  A.  Zacharise:  Deutsches  Staats-iind  BundesrecM,  Ed.  3,  Vol.  1,  pages 
257,  287,  291,  292;   Welcker^s  Staaislexikon,  Ed.  3,  Vol.  10,  pages  735-738. 

t  See,  the  New  York  Times  for  November  16,  1888,  on  the  Seward  Statue. 

X  Pamphlet  Report  :  New  York,  1784,  page  41.  See  poat^  chapter  24,  on 
this  case. 


60  INTRODUCTION. 

''manifest,  the  judges  are  not  at  liberty,  althougli  it  appears 
"  to  them  to  be  unreasonable,  to  reject  it :  for  this  were  to 
''set  the  judicial  above  the  legislative,  which  would  be 
"subversive  of  all  government." 

The  doctrine  of  Blackstone's  tenth  rule  for  construing 
statutes,  as  laid  down  in  his  Commentaries,  I.  91,  is  thus 
applied  to  acts  of  the  legislature  under  a  written  American 
constitution. 

An  important  postulate  of  the  opinion  remains  to  be  con- 
sidered. 

Marshall  lays  down  that  ' '  it  is  emphatically  the  province 
"and  duty  of  the  judicial  department  to  say  what  the  law 
"is.  Those  who  apply  the  rule  to  particular  cases,  must  of 
"  necessity  expound  and  interpret  that  rule." 

This  proposition  may  be  deemed  by  some  to  be  a  correct 
general  inference  from  the  judicial  institutions  of  civilized 
nations  in  all  times  and  places.  Proper  investigation  will, 
however,  show  that  such  cannot  be  the  case.  The  proposi- 
tion is,  indeed,  a  proof  that,  in  writing  this  opinion,  the 
institutions  of  lands  of  the  Common  law  could  only  have  been 
clearly  in  the  Chief  Justice's  contemplation.  In  the 
countries  of  the  Civil  law  there  are  two  methods  of  interpret- 
ing written  laws,  the  authentic  or  authoritative,  and  the 
doctrinal  or  judicial.  Authentic  interpretation  is  made  by 
the  lawgiver  or  legislature,  upon  the  principle  of  ejus  est 
interpretari  cujus  est  condere.  Merlin's  Repertoire  in  the 
article  on  Interpretation  observes : 

' '  C  est  au  legislateur  qu'  il  appartient  naturellement 
"d' interpreter  la  loi :  ejus  est  legem  interpretari  cujus 
^^  est  legem  condere.  C'est  une  maxime  tiree  du  droit  ro- 
"main.  Quis  enim  (disait  I'empereur  Justinien,  dans  la 
"  loi  12,  C.  de  legibus),  legum  cenigmata  solvere  et  aperire 
'Hdoneus  esse  mdehitur,  nisi  is  cui  soli  legislator  em  esse 
'^ concessum  est? 

"En  France,  nos  rois  se  sont  tou jours  reserve  I'interpre- 
"tation  de  leurs  ordonnances." 

Authentic  interpretation  by  legislators  overrules  the  doc- 
trinal interpretation  of  the  judiciary  and  binds  them  in  all 
future  cases,  whether  they  involve  previous  acts  and  con- 


INTRODUCTION.  61 

tracts  or  not.  It  is  liable  to  be  abused,  out  lawgivers  and 
legislatures  are  not  the  only  authorities  who  have  inter- 
preted laws  abusively.  Upon  the  two  kinds  of  interpreta- 
tion, see  Yon  Mohl  on  Unconstitutional  Laws  in  his  Staats- 
recht,  VoelJcerrecM  und  PolitiJc,  Vol.  1,  pages  77,  78,  79 ; 
Merlin,  Ed.  1827,  Yol.  8,  page  562,  col.  2 ;  Dupin's  Opus- 
cules de  Jurisprudence^  Ed.  1851,  page  389. 

Bowyer,  in  his  Commentaries  on  the  Modem  Civil  Law 
page  27,  observes : 

"The  law  is  to  be  interpreted  either  by  judicial  or  by  the 
"legislative  power  ;  and  Domat  shows  that  the  legislative 
"  power  should  be  called  upon  to  interpret  the  law  only  in 
"those  cases  where  the  rules  of  construction,  which  the 
"courts  are  bound  to  follow,  prove  insufficient  to  remove 
"the  difficulty.  This  was  the  original  and  sound  doctrine 
"of  the  Eoman  law,  though  after  the  legislative  power  be- 
"came  vested  in  the  emperors,  legislative  interpretation  far 
"  exceeded  those  limits." 

It  is  probable  that  most  civilians,  after  perusing  the  deci- 
sion in  Chisholm  n.  Georgia  (2  Dallas,  419),  would  pronounce 
the  11th  amendment  to  be  an  authentic  interpretation  of  the 
text  of  the  constitution  concerning  controversies  between  a 
state  and  citizens  of  another  state. 

The  postulate  in  question  is  thus  certainly  an  inference, 
and  furthermore,  an  incorrect  inference,  if  the  powers  be- 
longing to  sovereign  legislators  and  legislatures  in  other 
civilized  nations  be  appealed  to.  This  conclusion  must  be 
admitted  to  be  correct  by  all ;  even  by  those  who  believe 
that  Marshall's  idea  of  judicial  duty  is  the  true  conception 
otj'us  dicer  €  J  and  that  the  ordinary  interpretation  is  in  all 
cases  judicial,  while  legislative  interpretation  is  extraordi- 
nary in  all  the  cases  in  which  its  existence  is  possible.  The 
question  is  not  whether  Marshall's  postulate  ought  to  be 
law  everywhere,  but  whether  it  is  and  has  been  law  every- 
where, especially  in  the  countries  of  the  Civil  law. 


62  INTRODUCTION. 

No.  3. 
Continuation  of  the  review. 

The  first  or  general  part  of  Marshall's  reasoning  nas  now 
been  fully  considered.  Next  comes  the  second  or  special 
part.  It  relates  chiefly  to  ' '  the  peculiar  expressions ' '  of  the 
constitution  of  the  United  States  which  furnish  "  additional 
arguments-'  for  rejecting  the  doctrine  that  a  law,  which  is 
unconstitutional  and  therefore  void,  nevertheless  binds  the 
courts,  and  compels  them  to  read  it  only  and  close  their 
eyes  on  the  constitution.  Here,  if  anywhere,  must  be  found 
meanings  derived  from  texts,  which  are  not  derived  from 
inference,  but  from  express  words.  Six  texts  of  the  consti- 
tution are  commented  upon  or  referred  to. 

''But  the  peculiar  expressions  of  the  constitution  of  the 
"United  States  furnish  additional  arguments  in  favour  of 
*' its  rejection. 

"The  judicial  power  of  the  United  States  is  extended  to 
"all  cases  arising  under  the  constitution. 

"Could  it  be  the  intention  of  those  who  gave  this  power, 
"to  say  that,  in  using  it,  the  constitution  should  not  be 
"looked  into  ?  That  a  case  arising  under  the  constitution 
"should  be  decided  without  examining  the  instrument  un- 
"der  which  it  arises  ? 

"This^is  too  extravagant  to  be  maintained." 

That  is  to  say,  the  truth  of  part  of  his  meaning  of  the 
said  text  is  inferred,  because,  if  the  contrary  be  assumed 
true,  an  absurdity  must  be  inferred.  The  text  sounder- 
stood  may  or  may  not  show  that  the  question,  whether  an 
act  of  Congress  be  constitutional  or  not,  is  a  judicial  and 
not  an  extrajudicial  one.  If  it  do  so,  the  conclusion  must 
be  based  only  on  inference. 

"In  some  cases  then,  the  constitution  must  be  looked  into 
"by  the  judges.  And  if  they  can  open  it  at  all,  what  part 
"  of  it  are  they  forbidden  to  read,  or  to  obey  ?" 

That  is  to  say,  the  truth  of  the  remaining  part  of  his  mean- 
ing of  the  said  text  is  inferred,  because,  if  the  contrary  be 
assumed  true,  an  absurdity  must  be  inferred. 

"There  are  many  other  parts  of  the  constitution  which 
"serve  to  illustrate  this  subject. 


INTRODUCTION.  63 

^^  It  is  declared  that  '  no  tax  or  duty  shall  be  laid  on  arti- 
*'cles  exported  from  any  state.'  Suppose  a  duty  on  the 
"  export  of  cotton,  of  tobacco  or  of  flour ;  and  a  suit  instituted 
''to  recover  it.  Ought  judgment  to  be  rendered  in  such  a 
"  case  1  Ought  the  judges  to  close  their  eyes  on  the  consti- 
"tution,  and  only  see  the  law'^" 

That  is  to  say,  the  truth  of  his  meaning  of  another  text 
is  inferred,  because,  if  the  contrary  be  assumed  true,  an  ab- 
surdity must  be  inferred. 

''The  constitution  declares  'that  no  bill  of  attainder  or 
"  '  ex postfacto  law  shall  be  passed.' 

"If,  however,  such  a  bill  should  be  passed,  and  a  person 
"  should  be  prosecuted  under  it,  must  the  court  condemn  to 
"death  those  victims  whom  the  constitution  endeavours 
"to  preserved' 

That  is  to  say,  the  truth  of  his  meaning  of  another  text, 
or  rather  two  other  texts,  is  inferred,  because,  if  the  con- 
trary be  assumed  true,  an  absurdity  must  be  inferred. 

"  'No  person,'  says  the  constitution,  'shall  be  convicted 
'"of  treason,  unless  on  the  testimony  of  two  witnesses  to 
"  'the  same  overt  act,  or  on  confession  in  open  court.' 

"  Here  the  language  of  the  constitution  is  addressed  es- 
"pecially  to  the  courts.  It  prescribes  directly  for  them,  a 
"rule  of  evidence  not  to  be  departed  from.  If  the  legisla- 
"ture  should  change  that  rule,  and  declare  07ie  witness,  or 
"a  confession  02^^  of  court,  sufficient  for  conviction,  must 
"the  constitutional  principle  yield  to  the  legislative  act  ?" 

For  this  purpose,  this  text  is  the  strongest  of  those  ad- 
duced. The  answer  to  its  concluding  question,  however, 
makes  the  reasoning  a  reductio  ad  dbsurdum.  Thus,  it  is 
upon  inference  only  that  he  relies,  to  prove  that  courts  are 
bound  to  say  that  an  act  of  Congress  is  void  because  con- 
flicting with  the  constitutional  text  under  consideration. 
In  other  words,  his  proposition  that  the  judicial  courts  are 
especially  addressed  by  the  text,  is  affirmed  as  inferred  from 
the  text  itself,  not  as  expressed  in  it.  He  confines  his  at- 
tention exclusively  to  the  contents  of  the  clause,  without  al- 
luding to  its  location  in  the  whole  text,  or  its  relations  to 
other  clauses.  The  contents  of  the  clause  include  no  men- 
tion whatsoever  of  the  judges  of  the  United  States  courts, 
while  paragraph  2.  YI.  after  mentioning  the  constitution 
and  certain  other  written  instruments,  expressly  mentions 


64  INTRODUCTION. 

state  judges  as  bound  thereby :  "and  the  judges  in  every 
"  state  shall  be  bound  thereby."  This  present  clause  does 
not  contain  any  words  such  as  "the  judges  of  the  courts  of 
"the  United  States  shall  be  bound  thereby."  In  the  case 
of  this  text  upon  treason,  the  question  whether  it  does  or 
does  not  bind  the  judicial  department  as  against  an  act  of 
Congress  decides  whether  the  violation  thereof  results  in 
constitutional  grievances  to  be  redressed  by  petition  to  the 
government,  or  in  legal  wrongs  to  be  redressed  by  judicial 
proceedings. 

On  this  point,  Iredell's  argument,  reprinted  in  chapter  26 
of  this  Essay,  may  be  consulted  as  to  any  written  constitu- 
tion whatsoever. 

Marshall's  observations  on  the  text  in  question  are  of 
much  importance  as  a  very  early  example  of  the  theory  of 
the  address  of  clauses  in  a  written  constitution.  The  mem- 
orable habeas  corpus  controversy,  in  which  Binney  played 
a  leading  part,  will  be  recalled  in  this  connection.  Whether 
the  habeas  corpus  clause  of  the  U.  S.  constitution  was  ad- 
dressed to  Congress  or  to  the  executive  power,  was  regarded 
by  many  persons  as  an  open  question. 

Divisions  B.,  C.  and  D.  of  chapter  9  following,  are  also 
of  interest  in  this  connection,  and  show  how  two  Gertnan 
supreme  courts  differed  as  to  what  a  disciple  of  Marshall 
would  call  the  address  of  a  clause  in  the  written  constitu- 
tion of  the  State  of  Bremen.  That  clause  prescribed  that 
well-acquired  rights  should  not  be  injured.  The  late  Han- 
seatic  Court  of  Upper  Appeal  decided  that  certain  legisla- 
tion conflicted  with  the  said  clause,  and  held  it  therefore 
void.  Subsequently,  the  new  Imperial  Tribunal  of  the  Ger- 
man Empire  decided  that  the  same  clause  was  to  be  under- 
stood merely  as  a  rule  for  the  legislative  power  itself  to  in- 
terpret, and  did  not  mean  that  a  command  of  that  power 
could  be  disregarded  by  the  judiciary,  because  injurious  to 
well-acquired  rights.  It  thus  held  that  the  clause  was  ex- 
clusively addressed  to  the  legislature,  a  proposition  which 
must  be  denied  by  any  one  affirming  the  truth  of  the  Han- 
seatic  decision.    Compare  Georgia  x.  Stanton,  6  Wallace  50. 

The  cited  text  upon  treason  can  not  bind  any  judicial 


INTRODUCTION.  65 

court  in  a  case  of  conflict  between  it  and  an  act  of  Con- 
gress, unless  it  be  a  judicial  question  whether  a  challenged 
act  of  Congress  be  constitutional  or  unconstitutional  and 
valid  or  void  accordingly.  If  it  be  an  extrajudicial  ques- 
tion no  court  can,  of  course,  decide  it.  The  said  text  may 
imply,  but  certainly  does  not  express^  the  proposition  that 
the  said  question  is  a  judicial  and  not  an  extrajudicial  one. 
Neither  does  any  one  of  the  other  texts  expounded  by  Mar- 
shall expressly  assert  that  proposition,  if  his  exposition 
thereof  be  correct.  According  to  Marshall's  reasoning,  that 
question  can  only  be  inferred  to  be  a  judicial,  and  not  an  ex- 
trajudicial one.  The  cited  text  upon  treason  could,  there- 
fore, be  only  inferred  by  him  to  bind  the  judicial  depart- 
ment in  the  said  cases  of  conflict.  The  writer,  of  course, 
maintains  that  it  binds  the  judiciary  in  all  cases ;  but  at 
the  same  time  contends  that  the  said  question  is  expressly 
made  a  judicial  one  by  other  texts  of  the  constitution. 

''From  these,  and  many  other  selections  which  might  be 
**made,  it  is  apparent  that  the  framers  of  the  constitution 
''contemplated  that  instrument  as  a  rule  for  the  govern- 
*'ment  of  courts  as  well  as  of  the  legislature." 

This  language  imports,  inter  alia,  that  the  constitution 
is  a  rule  for  the  government  of  courts,  to  the  extent  that  it 
is  a  judicial  and  not  an  extrajudicial  question,  whether  an 
act  of  Congress  be  repugnant  to  the  constitution  or  not. 
Such  a  proposition  is  correct,  but  as  far  as  Marshall  is  con- 
cerned, it  is  purely  an  inference  from  the  constitution  as 
commented  upon  by  him. 

All  the  previous  conclusions  from  texts  actually  selected, 
have  been  shown  to  be  inferred  therefrom,  not  expressly 
imported  thereby.  None  of  the  "many  other  selections 
"which  might  be  made"  from  the  constitution,  are  men- 
tioned. What  texts  they  may  be,  can  only  be  conjectured. 
They  are  omitted  quotations,  and  this  last  conclusion  is 
merely  matter  of  inference  like  its  predecessors. 

"  Why  otherwise  does  it  direct  the  judges  to  take  an  oath 
"  to  support  it?  This  oath  certainly  applies,  in  an  especial 
' '  manner,  to  their  conduct  in  their  official  character.  How 
"  immoral  to  impose  it  on  them,  if  they  were  to  be  used  as 

5  0. 


66  INTRODUCTIOI^. 

''the  instruments,  and  the  knowing  instruments,  for  violat- 
' '  ing  what  they  swear  to  support  V ' 

That  this  is  merely  inference,  is  clear  from  a  collation  of 
the  text  of  paragraph  3.  YI.  with  that  of  the  end  of  sec- 
tion 1.  II.  There  is  nothing  special  to  his  office  expressed 
in  the  constitutional  oath  required  of  a  judge,  while  the  only 
special  oath  of  office  prescribed  by  the  constitution  is  the 
President's.  The  former  text  requires  senators  and  repre- 
sentatives, members  of  the  state  legislatures  and  the  execu- 
tive and  judicial  officers  of  the  United  States,  and  of  the 
several  states,  to  be  bound  by  oath  "to  support  this  consti- 
"tution."  The  latter  text  requires  the  President  to  swear 
that  he  will  faithfully  execute  his  office,  and  will  to  the  best  of 
his  ability  "  preserve,  protect  and  defend  the  constitution  of 
"the  United  States." 

"The  oath  of  office,  too,  imposed  by  the  legislature,  is 
"completely  demonstrative  of  the  legislative  opinion  on  this 
"  subject.  It  is  in  these  words  :  '  I  do  solemnly  swear  that 
"  '  I  will  administer  justice  without  respect  to  persons,  and 
"  '  do  equal  right  to  the  poor  and  to  the  rich  ;  and  that  I 
"' will  faithfully  and  impartially  discharge  all  the  duties 

"  '  incumbent  on  me  as ,  according  to  the  best  of  my 

' ' '  abilities  and  understanding,  agreeably  to  the  constitution 
"  '  and  laws  of  the  United  States.' 

"  Why  does  a  judge  swear  to  discharge  his  duties  agree- 
"ably  to  the  constitution  of  the  United  States,  if  that  con- 
"  stitution  forms  no  rule  for  his  government  ?  if  it  is  closed 
"  upon  him,  and  can  not  be  inspected  by  him. 

"If  such  be  the  real  state  of  things,  this  is  worse  than  sol- 
"  emn  mockery.  To  prescribe,  or  to  take  this  oath,  becomes 
"equally  a  crime." 

The  above  conclusions  are  merely  inferred  from  an  infer- 
ence made  by  Congress. 

"  It  is  also  not  entirely  unworthy  of  observation,  that,  in 
"  declaring  what  shall  be  the  supreme  law  of  the  land,  the 
"  constitution  itself  is  first  mentioned  ;  and  not  the  laws  of 
"the  United  States  generally,  but  those  only  which  shall 
' '  be  made  in  pursuance  of  the  constitution,  have  that 
"rank." 

It  is  of  the  highest  importance  to  observe  that  the  above 
comment  upon  the  text  of  paragraph  2.  VI.  is  said  to  be  only 
"  not  entirely  unworthy  of  observation."      The  lesson  can 


INTRODUCTION.  67 

only  be  inference,  for,  if  he  held  it  to  be  the  express  import 
of  the  words,  he  would  certainly  have  thought  the  com- 
ment entirely  worthy  of  observation. 

''Thus,  the  particular  phraseology  of  the  constitution 
"  of  the  United  States  confirms  and  strengthens  the  principle, 
"supposed  to  be  essential  to  all  written  constitutions,  that 
"  a  law  repugnant  to  the  constitution  is  void,  and  that  courts, 
"as  well  as  other  departments,  are  bound  by  that  instru- 
"ment." 

That  is  to  say,  his  essential  principle  of  all  written  con- 
stitutions is  supposed  only  ;  supposed,  it  is  true,  because 
it  is  contrary  to  reason  to  do  otherwise.  There  is,  however, 
nothing  in  the  text  of  the  constitution,  as  he  expounds  it, 
expressly  asserting  it.  The  peculiar  phraseology  of  the 
constitution  "confirms  and  strengthens  "  the  principle,  but 
does  not  express  it. 

No.  4. 
Conclusion  drawn  from  the  foregoing  revieio. 

The  foregoing  review,  it  is  contended,  makes  it  evident 
that  Mr.  McMurtrie  is  correct  in  his  emphatic  assertion  as  to 
the  nature  of  Marshall's  reasoning  on  the  constitutional 
question  in  Marbury  n.  Madison.  That  is  to  say,  he  is  en- 
tirely correct  in  affirming  that  the  said  reasoning  proceeds 
exclusively  upon  implication  and  inference  in  drawing  the 
conclusion  that  a  judicial  court  can  declare  a  law  to  be  un- 
constitutional and  void. 

It  is  a  consequence  of  this  conclusion  being  true,  that  any 
writer  who  maintains  that  such  a  judicial  competency  is 
matter  of  express  import  according  to  the  constitutional 
text,  must  proceed  otherwise  than  Marshall,  and  must  reason 
upon  a  basis  different  from  the  opinion  in  Marbury^.  Madi- 
son. 


INTRODUCTION 


'No.  5. 


A  further  consideration  of  MarshalV  s  observation  in 
Ware  v.  Hylton. 

It  is  another  consequence  of  the  foregoing  conclusion  that 
Marshall  changed  his  mind  between  the  dates  of  Ware  v. 
Hylton  and  Marbury  v.  Madison,  if  his  observation  at  the 
bar  in  the  former  case  is  to  be  taken  literally.  If  that  ob- 
servation be  so  taken,  he  then  thought  that  in  every  country 
the  judicial  pov^er  had  no  right  to  question  the  validity  of  a 
law  on  constitutional  grounds,  unless  such  a  jurisdiction  was 
expressly  given  by  the  constitution. 

Whether  Marshall's  language  in  Ware  v.  Hylton  is  to  be 
taken  literally  is  a  very  interesting  question  in  legal  history. 
It  is  one  which  ought  not  to  be  answered  without  further 
consideration. 

In  the  first  place,  Dallas,  in  the  note  on  his  page  207,  ex- 
pressly says,  that  he  was  not  present  at  the  argument,  that 
he  was  disappointed  in  obtaining  from  counsel  their  briefs, 
and  that  he  used  the  notes  of  a  member  of  the  bar  who  had 
been  in  court  when  they  spoke.  These  volunteer  notes,  it 
may,  perhaps,  be  presumed,  were  not  made  with  a  view  to 
reporting  the  case  in  print.  Anyhow,  the  reporter' s  printed 
foot-note  shows  that  Marshall  was  not  bound  by  the  letter 
of  the  printed  report  of  his  argument  on  any  point  on  which 
a  more  probable  statement  can  be  presented. 

Can  such  more  probable  statement  be  presented  %  The 
answer  to  this  question  depends  upon  the  history  of  the 
North  Carolinian  case  of  Bayard  v.  Singleton,  which  is  the 
first  reported  case  under  a  written  constitution  in  which  a  law 
was  decided  unconstitutional  and  held  therefore  void.  It  is 
involved  in  the  discussion  of  the  present  question  in  this  wise. 
Among  the  judges  whom  Marshall  addressed  in  Ware  v. 
Hylton,  was  Iredell.  That  eminent  jurist,  as  counsel  in 
Bayard  v.  Singleton,  led  the  way  to  the  court's  decision 
therein.  His  important  place  in  the  judicial  history  of  writ- 
ten constitutions  will  fully  appear  w^hen  Bayard  v.  Single- 
ton is  rehearsed  in  chapter  26  of  this  Essay. 


INTRODUCTION.  69 

Marshall  said,  according  to  tlie  report  of  Ware  v.  Hylton  : 
"The  legislative  authority  of  any  country  can  only  be  re- 
-strained by  its  own  municipal  constitution.  This  is  a 
"  principle  that  springs  from  the  very  nature  of  society ;  and 
"  the  judicial  authority  can  have  no  right  to  question  the 
''  validity  of  a  law."  So  far  there  is  no  difficulty  in  under- 
standing or  interpreting  the  words.  As  reported,  he  then 
added:  "unless  such  a  jurisdiction  is  expressly  given  by 
"  the  constitution."  Now  the  history  of  Bayard  v.  Single- 
ton will  show  that  he  must  have  contradicted  Iredell's  his- 
torical position  in  constitutional  law,  if  he  meant :  unless 
such  a  jurisdiction  is  given  hy  the  constitution  expressly 
saying  tliat  the  judicial  authority  has  the  right  to  question 
the  validity  of  a  law  when  it  is  made  in  contradiction  to 
constitutional  restraints  of  legislative  authority.  But  he 
agreed  with  Iredell' s  historical  position,  if  he  meant :  unless 
such  a  jurisdiction  is  given  'by  the  constitution  expressly 
restraining  the  legislative  authority  so  as  to  make  it  a 
limited  and  not  an  omnipotent  one. 

It  must  be  assumed  that  Marshall  knew  who  the  judges 
were  whom  he  addressed,  and  what  their  legal  biographies 
were.  He  could  not  have  differed  with  Iredell  on  such  a 
question,  without  knowing  that  he  did  so,  and  meaning  to 
do  so.  If  he  did  not  mean  to  differ  with  him,  he  thought 
that  when  a  written  constitution  expressly  restrained  the 
legislative  authority,  such  express  restraint  of  legislation 
was  the  basis  of  an  implied  judicial  right  to  question  the 
validity  of  a  law  made  in  Contradiction  thereof.  A  legisla- 
tive authority  expressly  limited  by  the  constitution  implied 
a  corresponding  jurisdiction  in  the  judicial  authority.  This 
is  what  Iredell  meant  by  the  term,  '^express  constitution,''^ 
used  by  him  in  1787,  in  a  letter  addressed  to  a  Framer  of  the 
constitution,  while  the  convention  was  in  session.  Accord- 
ing to  Iredell's  view  of  the  law  of  constitutions,  the  consti- 
tution of  North  Carolina  was,  and  the  British  constitution 
was  not,  such  "an  express  constitution."* 

*  See  Life  of  Iredell,  vol.  2,  page  172,  line  9  from  bottom,  and  page  146,  Iimc 
1  from  bottom,  both  of  which  texts  are  reprinted  in  chapter  26,  post^  in  the  ac- 
count of  Bayard  v.  Singleton. 


70 


INTKODUCTION. 


If  the  words  actually  used  by  Marshall  were  not  those  of 
the  report,  and  were  such  as  agreed  with  Iredell's  i)osition, 
he  must  have  used  language  like  the  following:  "unless 
''such a  jurisdiction  is  given  by  the  constitution  expressly 
" restraining  the  legislative  authority,"  or,  "unless  such  a 
' '  j  urisdiction  is  given  by  an  express  constitution. ' '  If  Mar- 
shall used  such  words,  or  others  of  identical  meaning,  he  did 
not  change  his  mind  between  the  dates  of  Ware  v.  Hylton 
and  Marbury  -».  Madison.  It  is  for  the  reader  to  decide 
whether  any  such  conjecture  is  good  ground  for  an  emen- 
dation of  the  report  of  Marshall's  argument  at  the  bar  in 
the  former  case. 

Certain  it  is  that  Iredell  actually  denied  the  truth  of  what 
is  written  in  the  first  column  below,  but  not  the  truth  of 
what  is  written  in  the  second. 


MarshalVs  words  as  reported. 

"The  legislative  authority  of  any 
"  country  can  only  be  restrained  by 
* '  its  own  municipal  constitution :  This 
"  is  a  principle  that  springs  from  the 
' '  very  nature  of  society ;  and  the  j  udic- 
"ial  authority  can  have  no  right  to 
"  question  the  validity  of  a  law,  unless 
"  such  a  jurisdiction  is  expressly  given 
' '  by  the  constitution. ' ' 


Suggested  emendation  of  the  report  of 
MarshaWs  words. 
"  The  legislative  authority  of  any 
"  country,  can  only  be  restrained  by  its 
' '  own  municipal  constitution :  This  is 
"  a  principle  that  springs  from  the  very 
"nature  of  society;  and  the  judicial 
' '  authority  can  have  no  right  to  ques- 
"  tion  the  validity  of  a  law,  unless  such 
' '  a  jurisdiction  is  given  by  an  express 
"  constitution.^^ 


By  "  express  constitution,"  Iredell  meant  one  which  was 
the  direct  opposite  of  the  British  constitution,  because  it  re- 
stricted the  legislature  in  express  terms;  see  chapter  26, 
post,  and  Life  of  Iredell  as  cited  in  previous  note. 


HISTORICAL  COMMENTARY. 


PART  I. 

INVESTIGATION  OF  FOREIGN  LAWS  ON  JUDICIAL  POWER  AND 
ITS  RELATION  TO  LEGISLATION  CONTRARIANT  TO  A  CON- 
STITUTIONAL   OR   OTHER  RULE    OF   RIGHT. 


PART  II. 

INVESTIGATION  OF  THE  LAWS  OF  CERTAIN  OF  THE  STATES 
ON  THE  RELATION  OF  JUDICIAL  POWER  TO  UNCONSTITU- 
TIONAL LEGISLATION  BEFORE  AND  DURING  THE  CONFED- 
ERATION. 


PART  III. 

OF   THE  HISTORICAL   ANTECEDENTS    OF   THE   TEXTS    OF    THE 
CONSTITUTION,  WHICH  ARE  CONCERNED. 


PART  IV. 

OF  THE  INTENTIONS  OF  THE  FRAMERS  OF  THE  CONSTITU- 
TION ON  THE  RELATION  OF  JUDICIAL  POWER  TO  UNCON- 
STITUTIONAL LEGISLATION. 

(71) 


HISTORICAL  COMMENTARY. 


PAET  I. 

Part  I.  of  the  Historical  Commentary  will  consider  the 
subject  in  connection  with  certain  important  foreign  laws 
past  and  present.  It  will  include  an  investigation  of  the 
laws  of  certain  European  states  and  unions  of  states,  and 
an  examination  of  the  Roman  and  Canon  laws. 

CHAPTER  VI. 

Preliminary, 

No.  1.  Preliminary  as  to  England. 

JYo,  2.  Preliminary  as  to  continental  Europe, 


This  chapter  will  be  concerned  with  considerations  pre- 
liminary to  the  investigation  of  foreign  laws. 

No.  1. 

Preliminary  as  to  England. 

It  is  correct  to  say  that  it  is  now  law  in  England,  and 
that  it  was  law  there  long  before  1776,  that  the  judges  of 
the  courts  are  bound  by  acts  of  parliament  in  all  cases  ac- 
cording to  the  clear  and  clearly  expressed  intent  of  the  leg- 
islature.    When  that  intent  is  clear  and  clearly  expressed, 

(72) 


HISTORICAL   COMMENTARY.  73 

the  judges  can  not  explain  it  away  by  any  interpreting  de- 
vice or  defeat  it  by  that  or  any  other  means  whatsoever. 

Blackstone  is  now  and,  when  the  Framers  met,  was  suffi- 
cient authority  for  the  foregoing  proposition.  On  page  160 
of  his  first  volume,  he  speaks  thus  of  the  authority  of  par- 
liament : 

' '  It  hath  sovereign  and  uncontrollable  authority  in  the 
''making,  confirming,  enlarging,  restraining,  abrogating, 
''repealing,  reviving,  and  expounding  of  laws,  concerning 
"matters  of  all  possible  denominations,  ecclesiastical,  or 
"temporal,  civil,  military,  maritime,  or  criminal." 

Parliament  has  thus  an  absolute  and  unlimited  pleni- 
tude of  power.  The  relation  thereof  to  the  judiciary  is  ex- 
plained by  him  in  another  passage.  Where  the  meaning 
and  intent  of  parliament  is  clear,  the  courts,  he  holds,  must 
obey  the  statute  no  matter  how  unreasonable  it  may  be. 

Blackstone' s  words  are  the  following  (I.  91)  in  his  tenth 
rule  for  construing  statutes  : 

"Lastly,  acts  of  parliament  that  are  impossible  to  be  per- 
'  formed  are  of  no  validity  :  and  if  there  arise  out  of  them 
'  collaterally  any  absurd  consequences,  manifestly  contra- 
'  dictory  to  common  reason,  they  are,  with  regard  to  those 
'  collateral  consequences,  void.  I  lay  down  the  rule  with 
'these  restrictions;  though  I  know  it  is  generally  laid 
'  down  more  largely,  that  acts  of  parliament  contrary  to 
'  reason  are  void.  But  if  parliament  will  positively  enact 
'  a  thing  to  he  done  which  is  unreasonable^  1  Jcnow  of  no 
'  power  in  the  ordinary  forms  of  the  constitution,  that  is 
'"tested  with  authority  to  control  it:  and  the  examples 
^usually  alleged  in  support  of  this  sense  of  the  rule  do 
'  none  of  them  prove,  that,  where  the  main  object  of  a  stat- 
'  ute  is  unreasonable,  the  judges  are  at  liberty  to  reject 
'  it ;  for  that  were  to  set  the  judicial  power  above  that  of 
'the  legislature,  which  would  be  subversive  of  all  govern- 
'  ment.  But  where  some  collateral  matter  arises  out  of  the 
'  general  words,  and  happens  to  be  unreasonable,  there  the 
'  judges  are  in  decency  to  conclude  that  this  consequence 
'  was  not  foreseen  by  the  parliament,  and  therefore  they 
'  are  at  liberty  to  expound  the  statute  by  equity,  and  only 

^^^^ 


fasivEB 


74  HISTORICAL   COMMENTARY. 

^^  quoad  hoc  disregard  it.  Thus  if  an  act  of  parliament 
' '  gives  a  man  power  to  try  all  causes,  that  arise  witliin  his 
"manor  of  Dale  ;  yet,  if  a  cause  should  arise  in  which  he 
' '  himself  is  party,  the  act  is  construed  not  to  extend  to 
''that,  because  it  is  unreasonable  that  any  man  should  de- 
"termine  his  own  quarrel.  But,  if  we  could  conceive  it 
''possible  for  the  parliament  to  enact,  that  he  should  try  as 
' '  well  his  own  causes  as  those  of  other  j)ersons,  there  is  no 
"court  that  has  power  to  defeat  the  intent  of  the  legis- 
' '  lature,  when  couched  in  such  evident  and  express  words, 
' '  as  leave  no  doubt  whether  it  was  the  intent  of  the  legis- 
"  lature  or  no." 

The  proposition  laid  down  at  the  outset  is  thus  fully  sup- 
ported by  authority. 

Blackstone's  doctrine  concerning  the  relation  of  the  judi- 
ciary to  acts  of  parliament  was  accepted  in  the  colonies  as 
well  as  in  England,  when  the  American  revolution  broke 
out.  Those  American  lawyers  and  public  men  who  have 
doubted,  hesitated  or  wondered  concerning  a  judicial  com- 
petency of  deciding  legislation  unconstitutional  and  holding 
it  therefore  void,  or  have  denied  the  existence  of  such  com- 
petency, have  done  so  under  the  influence  of  English  law 
as  expounded  by  Blackstone.  If  there  are  any,  who  have 
done  so  for  other  reasons,  they  must  be  exceptions  to  the 
rule. 

For  the  purposes  of  clearness,  this  statement  is  made  in 
the  beginning.  Due  examination  and  consideration  of  the 
English  law  bearing  upon  the  subject  at  different  periods 
of  English  history  will  be  made  subsequently.  Two  re- 
marks only  are  now  necessary  : 

First ;  that  the  English  constitution  is  not  a  written,  but 
a  consuetudinary  constitution,  which  is  of  great  antiquity  ; 
and  that  part  of  what  was  true  in  1776  may  have  only  be- 
come so  since  the  discovery  of  America. 

Second  ;  that  Blackstone  teaches  "that  acts  of  parliament 
"  that  are  impossible  to  be  performed  are  of  no  validity  ;" 
and  that  this  proposition  requires  investigation  both  as  to 
its  previous  history  in  England  and  its  subsequent  history 
in  America. 


HISTORICAL   COMMENTARY.  75 

No.  2. 
Preliminary  as  to  continental  Europe. 

It  is  also  correct  to  say  that,  as  a  rule,  it  is  law  in  the 
civilized  states  of  modern  Europe,  that  the  legislature  can 
bind  the  judiciary  to  obey  and  apply  all  statutes  in  all 
cases,  and  can  restrain  courts  from  declaring  any  statute  to 
be  either  unconstitutional  or  void.  Upon  this  head,  it  is 
remarked  by  Bluntschli,  in  his  General  Public  Law  {Allge- 
meines  StaatsrecM),  ed.  1863,  I.  550,  551 : 

''In  most  modern  states  there  is,  however,  no  legal 
"remedy  against  the  validity  and  applicability  of  a  law  al- 
"  lowed  upon  the  ground  that  the  contents  thereof  stand  in 
"contradiction  to  the  constitution.  The  authority  of  the 
"legislative  body,  so  far  as  its  functions  reach,  is  valid  as 
"the  highest  and  as  an  incontestable  authority.  Hence 
"the  courts  are  not  empowered  to  touch  the  contents  of  a 
"law  and,  by  their  own  authority,  to  declare  the  same  to 
"be  invalid." 

These  principles  are  stated  to  be  of  "  general  validity  in 
"  England  as  well  as  on  the  European  continent."  On  the 
other  hand,  the  United  States  are  mentioned  as  being  re- 
markable for  the  existence  of  a  contrary  system  in  their 
public  law. 

"  In  North  American  public  law,"  Bluntschli  further  re- 
marks, "  we  find  another  and  opposing  system.  According 
"to  that  system,  the  courts  are  authorized  and  obliged, 
"when  they  are  convinced  that  a  law  conflicts  with  the 
"constitution,  to  refuse  recognition  thereto,  and  prevent 
"the  execution  thereof,  because  it  is  invalid."* 

It  will  be  observed  that  while  the  foregoing  observations 
are  limited  to  "most  modern  states,"  they  include  such 
states,  without  regard  to  their  constitutions  being  written 
or  unwritten.  Most  of  the  states  of  continental  Europe  now 
possess  written  constitutions  ;  and  every  European  written 
constitution,  past  or  present,  is  dated  after  the  establish- 
ment of  the  constitution  of  the  United  States.     Between 

*  Translation. 


76  HISTORICAL   COMMEIS^TARY. 

that  date  and  the  date  of  the  opinion  in  Marbury  "v.  Madi- 
son, however,  at  least  twelve  written  constitutions  were  pro- 
mulgated in  Europe."^  They  are  manifestly  ignored  by 
Chief  Justice  Marshall  in  that  opinion,  as  has  been  before 
noted. 


CHAPTER  YII. 

Of  Frencli  la^w  in  connection  ^witli  tlie  subject  of  tliis 

Essay. 

No.  1.  0/  French  written  constitutions.  Of  their  rela- 
tion to  the  previous  unwritten  polity  in  the  matter  of  judi- 
cial power. 

No.  2.  Of  the  regency  cases  in  the  reigns  of  Lewis  XIIL^ 
Lewis  XIY.^  and  Lewis  XV. 

No.  3.  Considerations  upon  the  French  parliaments. 

No.  4.  Of  the  pragmatic  sanction  of  Charles  YII.  and 
the  concordate  of  1517. 

No.  o.  Conclusions  from  the  foregoing  examination  of 
French  law. 


This  chapter  will  investigate  French  law  for  light  upon 
the  subject  of  this  Essay.  It  will  begin  with  the  modern 
law,  brought  into  existence  by  the  French  revolution,  and 
then  discuss  the  law  of  the  old  monarchy. 

*  See  the  collection  published  by  F.  A,  Brockhaus  at  Leipsig,  in  1817,  enti 
tied,  Die  Consiituiionen  der  europdischen  Staaten  seit  den  leizten  25  Jahren,  vol, 
1,  pp.  58,  114,  137,  209,  for  France  ;  p.  325  for  the  Netherlands  ;  vol.  2,  pp 
6,  16,  for  Poland  ;  vol.  4,  pp.  365,  387,  395,  409,  for  Switzerland  ;  vol.  4,  p 
813,  for  the  Cisalpine  Republic  ;  vol.  3,  p.  469,  lor  the  Italian  Republic  ;  vol 
3,  p.  515,  for  Lucca  ;  vol.  3,  p.  457,  for  Genoa.  Compare  vol.  3,  p.  530,  as  to 
the  Roman  Republic. 


HISTORICAL   COMMENTARY.  77 


No.  1. 


Of  French  written  constitutions.  Of  their  relation  to 
the  previous  unwritten  polity  in  the  matter  of  judicial 
power. 

Excluding  the  ill-fated  document  known  as  the  Polish 
constitution  of  May  3d,  1791,  the  French  constitution  of 
September  3d,  1791,  was  the  first  written  one  in  Europe. 
Article  16.  of  its  declaration  of  the  rights  of  men  and  citi- 
zens, is  thus  translated  : 

"  Every  society  in  which  the  guarantee  of  rights  is  not 
"secured,  or  the  separation  of  powers  is  not  fixed,  has  no 
"constitution." 

Articles  1.  and  3.  of  chapter  5.  of  the  constitution  pro- 
vide: 

"The  judicial  power  can  not  in  any  case  be  exercised  by 
"  the  legislative  body  or  by  the  king. 

"  The  tribunals  can  not  interfere  with  {sHmrriiscer  dans) 
"the  exercise  of  the  legislative  power,  nor  suspend  the  exe- 
' '  cution  of  the  laws,  nor  encroach  upon  administrative  f  unc- 
"  tions,  nor  cite  any  administrators  to  appear  before  them 
"on  account  of  their  functions."* 

The  general  relation  of  the  French  constitution  of  1791  to 
the  past  was  revolutionary,  and  its  continuance  was  of  brief 
duration.  Its  above  restriction  of  judicial  power  had,  how- 
ever, a  future  and  a  past.  That  restriction  has  unquestion- 
ably prevailed  in  France  from  1791  to  the  present  day  under 
all  forms  of  government.  Neither  can  it  be  doubted  that 
it  had  historical  antecedents  in  connection  with  a  great 
question  of  French  polity  then  requiring  settlement.  In 
France,  for  centuries,  the  kings  and  the  judiciaries  called 
parliaments  had  been  periodically  in  conflict  upon  the  right 
or  claim  of  the  latter  to  criticise  acts  of  legislation,  to  re- 
fuse registration  to  legislative  acts  deemed  wrongful,  and 
to  ignore  them  in  judicial  decisions.  The  question  had  been 
settled  too  recently  and  too  arbitrarily  against  the  parlia- 
ments to  be  considered  an  issue  incapable  of  revival  by  a 

*F.  A.  H6Ue:  Les  Constitutions  de  la  France,  270,  288 


78  HISTORICAL   COMMENTARY. 

new  judiciary  on  a  fitting  opportunity.  An  explicit  pro- 
vision, upon  the  competency  or  incompetency  of  the  Judi- 
ciary to  criticise  legislation,  was  certainly  proper,  if  not  un- 
avoidable. The  decision  of  the  constituent  powers  in  the 
new  constitution  was  against  the  competency.  This  deter- 
mination of  the  question  must  have  been  largely  due  to  the 
peculiar  idea  of  the  separation  of  powers  then  prevailing  in 
France. 

The  quotations  above  given  show  that  the  greatest  im- 
portance was  attributed  to  a  real  separation  of  powers.  As 
a  matter  of  fact,  the  varied  functions  of  the  old  parliaments 
had  been  connected  with  a  confusion  of  powers  of  govern- 
ment and  a  division  of  classes  of  Frenchmen,  which  other 
critics  besides  the  revolutionists  of  1791  have  objected  to.* 

The  influence  of  French  historical  associations,  therefore, 
led  to  the  principle  of  the  separation  of  powers  being  deemed, 
in  France  in  1791,  to  be  hostile  to  any  judicial  competency 
to  criticise  legislation  for  unconstitutionality.  This  is  ex- 
tremely curious,  for  the  weight  of  American  opinion  is  now 
and  always  has  been  the  other  way  uyjon  the  effect  of  the 
separation  of  powers,  ever  since  Americans  began  to  write 
constitutions.  In  the  last  century,  Montesquieu  and  other 
writers  upon  that  subject  were  deeply  pondered  by  politi- 
cal students  both  in  America  and  in  France.  Frenchmen 
did  so,  under  the  dominant  influence  of  French  history. 
Americans  did  so,  under  no  such  dominant  influence.  The 
former  seized  the  opportunity  of  a  written  constitution  to 
restrict  the  French  judiciary  as  aforesaid,  f  On  the  other 
hand,  Americans  wrote  the  U.  S.  constitution  upon  the  prin- 
ciple that  in  judicial  cases  arising  thereunder  it  was  neces- 
sary for  courts  to  criticise  legislation. 

*See  Gneist  on  English  and  German  Administration,   Justice  and  Legal 
Methods  :  [VcrwaUung,  Justiz,  Eechtsweg,  etc);  Berlin,  1869.  page  161. 
fSee  Solon  :  Repertoire  des  JurisdictioHi^  pf^r-j^^  '.^wt'^,  vol ,  1,  pages  25  to 28, 


HISTORICAL   COMMENTARY.  79 


No.  2. 


Of  the  regency  cases  in  the  reigns  of  Lewis  XIII. ,  Lewis 
XIV.,  and  Lewis  XV. 

While  the  Framers  of  the  constitution  of  the  United 
States  were  not  dominated  by  French  history  on  this  sub- 
ject, it  would  be  a  mistake  to  say  that  they  were  ignorant 
of  it. 

The  generation,  which  made  the  French  alliance,  could 
not  have  been  ignorant  of  the  great  facts  in  the  then  later 
history  of  France.  Certain  of  these  facts  have  an  import- 
ant bearing  upon  the  history  of  judicial  power  or  jurisdic- 
tion to  criticise  acts  of  legislation. 

In  France  under  the  old  monarchy  the  parliaments  were 
judicial  courts,  of  which  the  parliament  of  Paris  was  the 
chief  (the  Estates  General  corresponding  to  the  parliament 
of  England).*  It  is  true  that  they  had  powers  some  of 
which  were  extrajudicial,  but  this  did  not  prevent  them 
from  being  judicial  courts.  The  courts  of  Pennsylvania  do 
not  cease  to  be  judicial  tribunals,  because  they  have  extra- 
judicial powers  as  to  certain  matters. 

The  parliament  of  Paris,  upon  the  accession  of  the  minor 
king  Lewis  XIII.,  in  1610,  made  a  judicial  decision  de- 
claring the  queen  mother  to  be  regent,  thus  ignoring  any 
claims  of  any  prince  of  the  blood.  Martin,  in  his  History 
of  France,  XI,  page  4,  thinks  that  there  was  no  law  ' '  which 
""  attributed  this  exorbitant  right  to  this  court  of  justice." 
It  was,  however,  a  precedent  for  two  great  cases  in  which 
the  parliament  declared  legislative  acts  of  kings  of  France 
to  be  null  and  void.  The  first  of  these  cases  was  that  of  the 
regency  during  the  minority  of  Lewis  XIY.  His  father, 
Lewis  XIII,  by  a  formal  declaration  of  his  last  will,  made 
in  view  of  approaching  death,  enacted  that  the  queen  con- 
sort should  be  regent  with  powers  greatly  restricted  by 
those  of  a  council  of  regency,  which  he  therein  appointed. 
After  the  king's  death  (1643)  the  parliament  of  Paris  de- 
clared the  queen  to  be  sole  regent  without  any  council,  thus 

*  Fortescue  on  Monarchy,  ed.  2,  pages  16,  17. 


80  HISTOEICAL   COMMENTARY. 

partially  annulling  the  enactment  of  the  late  king,  on  the 
ground  "that  the  queen  once  recognized  as  regent  by 
' '  virtue  of  the  last  wishes  of  the  late  king,  consented  to  by 
''the  grandees  of  the  kingdom,  had,  of  right,  the  plenitude 
''  of  the  royal  power. '"^ 

The  second  case  is  that  of  the  regency  during  the  mi- 
nority of  Lewis  XV.  By  the  testament  of  Lewis  XI Y.,  it 
was  enacted  that  the  regency  should  be  vested  in  a  council, 
of  which  the  next  prince  of  the  blood,  the  Duke  of  Orleans, 
should  be  president.  "Upon  the  king's  death,  the  Duke  of 
Orleans  successfully  opposed  the  registration  of  the  testa- 
ment by  the  parliament  of  Paris.  The  duke  claimed  that 
the  testament  was  contrary  to  the  laws  and  usage  of  the 
kingdom,  and  prejudicial  to  his  right  to  be  regent.  This 
claim  was  sustained  by  the  parliament,  which  adjudged  the 
regency  to  the  Duke  of  Orleans,  f  The  session  of  the  par- 
liament which  did  this  was  held  on  September  2d,  1716. 
When  it  was  ended,  there  was,  according  to  Martin, :[  noth- 
ing left  of  the  wishes  of  Lewis  XIY.  except  the  parchment 
upon  which  they  were  written.  The  minor  king  was  not 
present  at  the  session.  The  new  regent  therefore  required 
a  further  ceremony,  the  name  of  which  recalled  that  the 
parliament  was  a  judicial  body.  A  "bed  of  justice"  was 
held  on  September  12th,  when  the  king  sat  in  parliament 
on  the  cushioned  throne  of  justice.  The  previous  action  of 
the  parliament  was  then  recorded  with  great  solemnity  in 
the  royal  presence.  § 

In  making  a  comparison  of  these  cases  in  the  old  French 
public  law  with  cases  in  constitutional  law  on  this  side  of 
the  Atlantic,  it  is  not  asserted  that  it  runs  upon  four  legs, 
for  there  was  no  such  distinct  division  of  powers  in  the 
former,  as  exists  in  the  latter.  The  parliaments,  although 
judicial  courts,  were  competent  to  decide  many  extrajudi- 
cial questions.  These  French  cases,  however,  suffice  to  show 
that  the  idea  of  a  judicial  court  holding  legislation  to  be 

*  Martin:  Histmre  de  France^  XI,  588. 

t  See  the  Historical  Register  for  1716  (London,  1717),  pages  35  to  45. 

\  Histoirc  de  France,  XV.  7  ;  cf.  XI.  6. 

§«ame  Work,  XV.  8. 


HISTORICAL   COMMENTARY.  81 

voi3.  because  contrary  to  binding  right,  was  known  in 
France  before  the  time  when  the  constitution  of  the  United 
States  was  framed.  This  is  remarkable,  and  peculiarly  so, 
when  it  is  remembered  that  the  then  constitution  of  France 
was  unwritten. 

ISTo.  3. 
Considerations  upon  the  French  parliaments. 

The  whole  history  of  the  French  parliaments  is  of  great 
interest  in  this  connection.  For  several  centuries  before 
the  French  revolution,  conflicts  between  the  crown  and  the 
parliament  of  Paris  w^ere  constantly  occurring.  Legally,  the 
main  question  of  public  right  in  these  contests  was  the  ex- 
tent of  the  powers  of  the  parliament  concerning  its  registra- 
tion of  the  king's  edicts  and  ordinances.  The  full  claim 
of  the  parliament  was  that,  for  proper  reasons,  it  had 
"the  right  to  refuse  registration  to  a  royal  ordinance,  and 
*'thus  to  strike  the  same  with  nullity  by  paying  no  regard 
' '  thereto  in  its  decisions."  See  Cheruel :  Dictionnaire  His- 
torique  des  Institutions  de  la  France  (Paris,  1855),  articles, 
Parlemerd  and  Enregistrement.  See  also  H.  Martin : 
Histoire  de  France^  XI.,  3,  4,  5. 

This  power,  if  exercised  by  the  parliament  to  the  full 
extent  of  the  claim,  could  be  made  an  effective  restmint 
upon  the  king's  legislative  power.  Many  judicious,  think- 
ers in  France  are  of  opinion  that  the  parliament  opposed  a 
useful  resistance  to  absolute  power.  It  must  not  be  forgot- 
ten that  the  French  monarchy  fell  because  the  meeting  of 
the  Estates  General  had  ceased  to  be  habitual.  The  kings 
had  secured  practically  a  monopoly  of  legislation  by  refus- 
ing to  convoke  that  assembly.  Those  who  have  thought  that 
tlie  parliaments  were  fully  liable  to  a  charge  of  usurpation 
must  have  failed  to  ai:>j)reciate  the  fact  that  such  a  charge 
w^ould  have  been  impossible,  if  the  Estates  General  had  been 
in  the  habit  of  meeting  at  proper  intervals  on  the  summons, 
of  the  crown. 

6  0.  ^ 


82  HISTORICAL   COMMENTARY. 

No.  4. 

Of  the  pragmatic  sanction  of  Charles  VII.  and  of  the 
concordate  of  1517. 

The  next  example  is  rather  a  series  of  cases  than  a  single 
one.  It  should  be  premised  that  the  registration  of  the  bulls 
of  the  popes  by  the  parliament  was  necessary  to  the  legal 
promulgation  thereof.  By  refusing  registration,  a  check 
upon  the  exercise  of  spiritual  power  might  be  made  as  long 
as  the  refusal  could  be  kept  up.  This  was  sometimes  a 
matter  of  difficulty. 

A  pragmatic  sanction  was  issued  by  king  Charles  YII. ,  con- 
cerning ecclesiastical  affairs,  which  was  registered  by  the 
parliament  of  Paris  on  July  13tli,  1439.  This  pragmatic 
sanction  provoked  continual  papal  remonstrances.  In 
consequence,  the  succeeding  king,  Lewis  XI.,  issued  letters 
patent  of  November  27th,  1461,  abolishing  the  pragmatic 
sanction.  The  parliament  of  Paris  refused  to  register  these 
royal  letters  patent.  A  serious  conflict  between  France  and 
Rome  resulted  from  this  refusal,  which  lasted  formally  as 
well  as  substantially  until  1 517.  In  that  year  a  concordate 
was  made  between  the  king  and  the  pope  then  reigning.  It 
was  actually  registered  in  the  following  year  by  the  parlia- 
ment of  Paris,  but  the  registration  was  unwillingly  made. 
The  court  accompanied  their  act  with  a  declaration  that  the 
registration  was  made  by  the  express  order  of  the  king,  and 
formally  protested  against  the  concordate  two  days  after. 
See  Andre :  Cours  du  Droit  Canon,  I.  585,  603,  605,  II. 
842.  Thus,  for  over  fifty  years  the  parliament  of  Paris  re- 
sisted the  pressure  made  by  royal  power  to  force  it  to  over- 
rule itself.  A  tribunal  which,  for  more  than  half  a  century, 
could  so  restrain  a  legislative  authority  within  disputed 
limits  on  so  great  a  matter  ca-n  not  be  overlooked  by  Ameri- 
can students  of  constitutional  law  at  the  present  day.  Nei- 
ther can  it  be  assumed  to  have  been  overlooked  by  Ameri- 
can students  in  the  last  century. 


iiiSTOPwiCAL  comme:s-tary  83 

No.  5. 

Conclusions  from  tJie  foregoing  examination  of  French 

law. 

From  the  above  cases  two  lessons  are  to  be  learned  : 

First ;  that  long  before  1787  a  French  judicial  court  criti- 
cised legislation  and,  in  two  constitutional  instances,  de- 
clared legislation  to  be  void  because  contrary  to  binding 
right  ascertained  by  itself. 

Second  ;  that  the  history  of  France  shows  clearly  that  the 
court  got  into  extrajudicial  affairs  in  so  doing,  a  thing  which 
in  the  end  produced  disastrous  results  to  all  the  parliaments 
in  France. 

The  Framers  of  the  constitution  of  the  United  States 
must  certainly  have  known  the  first  lesson.  In  the  sub- 
sequent pages  that  discuss  the  Framers'  intentions  as  to 
the  Supreme  Court  of  the  United  States,  reasons  will  be 
given  for  thinking  that  they  also  profited  by  the  second 
lesson. 

It  is  contended  from  the  foregoing  that  the  history  of 
French  public  law  shows  the  following  remarkable  results  : 

First ;  that  under  the  constitution  of  the  old  monarchy,  a 
judicial  power  or  right  to  hold  legislation  void  because 
contrary  to  binding  right,  was  well  known : 

Second  ;  that  the  first  written  French  constitution  in  1791 
prohibited  any  judicial  power  or  right  to  criticise  laws  for 
unconstitutionality  or  other  cause,  or  to  hold  them  void  for 
any  reason  ;  which  provision  has  continued  to  be  public  law 
in  France  until  the  present  day  : 

Third  ;  that  the  constitution  of  the  old  monarchy  was  un- 
written^ while  that  of  1791  was  written^  and  that  the  said 
judicial  power  or  right  existed  under  the  former,  but  was 
prohibited  under  the  latter,  and  has  been  prohibited  under 
various  subsequent  written  constitutions.  French  public 
law  upon  the  subject  is  thus  in  direct  contradiction  to  Mar- 
shall' s  view  of  written  constitutions.  French  legal  history 
is  also  in  curious  contrast  with  the  prevailing  idea  among 
Americans  of  the  present  day  as  to  the  relation  of  judicial 
power  to  written  and  unwritten  constitutions. 


84  HISTORICAL   COMMENTARY. 


CHAPTER  yill. 

Of  S^wiss  public  la^w  in  connection  -witli  tlie  subject 
of  this  Essay, 

No.  1.  Of  Swiss  public  law  and  the  present  federal  con- 
stitution and  federal  government. 

No.  2.  Of  tlie  Federal  Tribunal  and  federal  laws  con- 
flicting with  the  federal  constitution. 

No.  3.  Of  the  relations  between  cantonal  constitutions 
and  the  federal  constitution. 

No.  4.  Of  the  relation  of  the  judiciary  of  a  canton  to 
a  cantonal  law  conflicting  with  the  cantonal  constitution. 

No.  5.  Of  cantonal  laws  conflicting  with  the  Federal 
constitution. 

No.  %.  Of  a  cantonal  law  conflicting  with  the  federal 
guarantee  of  the  cantonal  constitution. 


The  next  topic  for  consideration  in  connection  with,  the 
subject  of  this  Essay  is  the  public  law  of  Switzerland. 

No.  1. 

Of  Swiss  public  law  and  the  present  federal  constitution 
and  federal  government. 

Swiss  public  law  has  long  naturally  attracted  American 
attention.  In  1789,  the  subject  of  Swiss  institutions  was  not 
neglected  by  the  men  who  framed  and  ratified  the  U.  S. 
constitution.  In  the  Federalist  (Dawson's  ed.,  302),  Swiss 
public  law  and  Swiss  political  history  are  appealed  to  in 
support  of  the  excellence  of  "the  domestic  violence"  pro- 
vision of  section  4.  TV. ,  of  the  new  constitution.     A  parallel 


HISTORICAL   COMMENTARY.  85 

is  made  between  Shays'  rebellion  in  Massachusetts  and  sim- 
ilar events  in  Swiss  Cantons. 

Swiss  publicists  and  legislators  of  the  present  day  have 
given  great  attention  to  American  constitutional  law.  An 
elaborate  work  by  Prof.  Riittiman  is  a  striking  proof  of 
this  assertion.  It  compares  in  detail  the  law  of  the  two 
federal  systems,  besides  adding  much  relating  to  the  con- 
stitutional law  of  the  respective  states  of  the  two  unions.  It  is 
entitled :  The  Public  Law  of  the  North  American  Federal 
Republic  compared  with  the  Political  Institutions  of  Switz- 
erland :  Zurich,  1867,  1872,  and  1876.  {Das  nordameri- 
Icanische  Bund-sstaatsrechtverglichen  mitdenpolitiscJien 
EinricMungen  der  ScJiweiz ;  von  Professor  Huitiman.) 

The  example  of  the  constitution  of  the  United  States  has 
been  followed  by  the  Swiss  in  what  C.  J.  Marshall  has  de- 
clared to  be  its  most  marked  characteristic.  The  federal 
constitution  of  the  Swiss  Eldgenossenschaft  is  a  w^ritten 
one.  .  It  provides  for  a  federal  government  capable  of  di- 
rectly operating  upon  individuals  and  not  restricted  to  in- 
directly doing  so  through  the  medium  of  the  cantons  or 
states.  This  system  was  introduced  by  the  constitution 
of  1848  and  continued  by  that  of  1874.  It  is  avowedly 
copied  from  the  constitution  of  the  United  States.  "^ 

The  federal  government  has  three  branches.  The  legisla- 
ture is  the  Federal  Assembly,  which  consists  of  two  cham- 
bers. In  one  chamber  the  several  cantons  are  equally  rep- 
resented, in  the  other  the  people  of  the  several  cantons  are  rep- 
resented according  to  their  respective  numbers.  The  execu- 
tive is  the  Federal  Council,  which  consists  of  seven  mem- 
bers. The  judiciary  consists  of  one  supreme  court,  the  Federal 
Tribunal.  There  are  no  inferior  federal  courts.  The  judges 
of  the  Federal  Tribunal  are  appointed  by  the  Federal  As- 
sembly for  six  years.  They  are  nine  in  number.  Care  is 
taken  that  they  represent  the  three  legal  languages.  There 
are  also  nine  substitute  judges,  f 

*  See  6  Wheaton,  388  ;  Von  Orelli :  Das  Staatsrecht  der  schweizerischen  Bid- 
genossenschaft,  p.  25,  (in  Marquardsen's  series)  Freiburg  i.  B.,  1885. 

fAdams  and  Cunningham  on  the  Swiss  Confederation,  London,  1889.  Chap- 
ters 3,  4,  5. 


86  HISTORICAL   COMMENTARY. 

Sir  F.  M.  Adams  and  Mr.  C.  D.  Cunningham  observe  on 
their  page  48 : 

^'The  separation  of  powers  is  not  very  strictly  observed 
"between  the  Federal  Assembly  and  the  Federal  Council 
*'  (nor,  indeed,  as  mentioned  in  our  chapter  upon  the  Fed- 
' '  eral  Tribunal,  between  the  judicial  authority  and  the  two 
"  political  federal  authorities)." 

No.  2. 

Of  the  Federal  Tribunal  and  federal  laws  conflicting  with 
the  federal  constitntion. 

The  Federal  Tribunal  has  a  civil  and  a  criminal  jurisdic- 
tion and  "also  deals  with  questions  of  public  law,"  (same 
work  p.  68).  Its  organization  and  authority  are  the  subject 
of  articles  106  to  114  of  the  federal  constitution.  The  last 
paragraph  of  article  113  is  thus  translated  : 

' '  In  all  these  cases,  however,  the  laws  and  generally  ob- 
* '  ligatory  resolutions  passed  by  the  Federal  Assembly,  and 
"also  the  treaties  ratified  by  it,  shall  be  binding  for  the 
"Federal  Tribunal." 

The  Federal  Tribunal  is  thus  bound  to  obey  and  apply  all 
laws  of  the  Federal  Assembly  in  all  cases  coming  under  its 
jurisdiction. 

To  an  important  extent  the  Federal  Tribunal  has  jurisdic- 
tion of  conflicts  between  the  authorities  of  the  confedera- 
tion and  those  of  the  cantons.  Prof.  Yon  Orelli,  in  speak- 
ing of  this  disposition,  calls  attention  to  its  resemblance  to 
the  model  of  the  U.  S.  Constitution.  He  regrets,  however, 
that,  while  in  North  America  the  tribunals  of  the  Union 
decide  upon  the  constitutionality  of  the  laws  of  Congress, 
it  is  ordained  in  Switzerland  that  the  laws  and  general  reso- 
lutions of  the  Federal  Assembly  must  be  applied,  without 
any  such  qualification,  by  the  Federal  Tribunal."^ 

*Von  Orelli,  26,  27,  43.     Adams  and  Cunningham,  73. 


HISTORICAL   COMMENTARY.  87 

No.  8. 

Of  the  relation  between  the  cantonal  constitutions  and  the 
federal  constitution. 

Thus  the  Federal  Tribunal  is  not  competent  to  decide  the 
question  whether  a  federal  law  be  constitutional  or  un- 
constitutional. There  can  be  no  such  judicial  question. 
Neither  can  it  be  a  judicial  question  whether  the  constitu- 
tion of  a  canton  contain  any  thing  contrary  to  the  constitu- 
tion of  the  confederation.  Such  a  question  is  extrajudicial 
and  is  decided  by  the  Federal  Assembly.  Before  the  con- 
stitution of  a  canton  or  an  alteration  thereof  can  go  into 
vigour,  it  must  be  subjected  to  the  criticism  and  receive  the 
consent  of  the  Federal  Assembly :  (compare  the  final  para- 
graph of  section  9.  I.  of  the  U.  S.  constitution,  which  pre- 
scribes that  no  state  shall,  without  the  consent  of  Congress, 
enter  into  a  compact  with  another  state).  The  action  of  the 
Federal  Assembly  on  a  cantonal  constitution  appears  to  be 
final  and  so  to  bind  the  Federal  Tribunal.* 

No.  4. 

Of  the  relation  of  the  judiciary  of  a  canton  to  a  cantonal 
law  conflicting  with  the  cantonal  constitution. 

The  judiciary  of  a  canton  are  not  competent  to  decide 
whether  a  cantonal  law  is  or  is  not  repugnant  to  the  can- 
tonal constitution.  Such  a  question  is  not  a  judicial  one. 
Mr.  Vincent  observes  on  his  page  142  : 

"  Contrary  to  the  practice  of  American  courts,  the  Swiss 
"  cantonal  tribunal  does  not  try  acts  of  the  legislature.  No 
"  court  can  set  aside  a  statute  because  of  disagreement  with 
''  a  state  constitution,  because  the*  legislature  is  regarded  as 
''the  final  authority  upon  its  own  act." 

■'^See,  J.  M.  Vincent  on  State  and  Federal  Government  in  Switzerland,  Balti- 
more, 1891,  page  34. 


88  HISTORICAL   COMMENTARY. 

No.  5. 

Of  cantonal  laws  conflicting  with  the  federal  constitution. 

The  foregoing  quotations  naturally  lead  one  to  suppose 
that  the  cantonal  judiciaries  are  not  competent  to  decide 
the  question  whether  a  cantonal  law  is  or  is  not  repugnant 
to  the  federal  constitution.  Such  a  supposition  is  probably 
correct.  Should,  however,  a  cantonal  court  undertake  to 
decide  that  a  questioned  cantonal  law  is  federally  constitu- 
tional, the  result  of  an  erroneous  decision  would  be  that  a 
conflict  must  arise  between  the  federal  and  the  cantonal 
authorities.  Over  such  conflicts  the  Federal  Tribunal  has 
jurisdiction.  Prima  facie,  it  would  therefore  seem,  to  an 
American,  that  in  such  case  the  Federal  Tribunal  would  be 
called  upon  to  decide  the  question  whether  such  cantonal 
law  is  federally  constitutional  or  unconstitutional  and  that 
such  question  would  be  a  purely  judicial  one  before  it. 
On  reflection,  however,  a  foreigner  will  wait  for  a  Swiss 
opinion  on  the  matter.  Meantime,  he  will  reject  such  a 
conclusion,  or  accept  it  only  with  modifications.  Further 
reflection  will  suggest  that  such  a  question  would  not 
necessarily  arise  as  a  purely  judicial  one  before  the  Federal 
Tribunal.  The  Federal  Assembly  can  pronounce  upon  the 
federal  constitutionality  of  the  part  or  the  whole  of  a  can- 
tonal constitution,  and  it  seems  probable  that  it  is  also  com- 
petent to  pronounce  upon  the  federal  constitutionality  of 
the  whole  or  a  part  of  a  cantonal  law.  Supposing  a  resolu- 
tion of  the  Federal  Assembly  to  have  decided  that  a  can- 
tonal law  is  or  is  not  federally  constitutional,  such  resolu- 
tion must  bind  the  Federal  Tribunal  according  to  article 
113  of  the  constitution. 

ISTo.  6. 

Of  a  cantonal  laic  conflicting  with  the  federal  guarantee 
of  the  cantonal  constitution. 

A  law  of  a  canton  violating  the  constitution  of  the  canton 
may  raise  a  federal  question.     Such  a  law  may  be  repugnant 


HISTORICAL   COMMENTARY.  89 

to  the  federal  guarantee  of  the  cantonal  constitution  pro- 
vided for  in  articles  5  and  6  of  the  federal  constitution. 
Both  the  Federal  Council  and  the  Federal  Assembly  have 
important  powers  and  obligations  relating  to  such  guaran- 
tees :  (Yon  Orelli  31,  34).  It  seems,  therefore,  possible 
that,  before  the  Federal  Tribunal  could  proceed  in  a  case 
under  such  guarantee,  the  Federal  Assembly  might  pro- 
nounce by  federal  resolution  upon  the  question  at  issue. 
Such  resolution  would  bind  the  Federal  Tribunal  according 
to  the  said  article  113. 


CHAPTER  IX. 


Of  Oerman  la^w  in  connection  T^itli  tlie  subject   of 

tlii8  Hssay. 


DIVISION  A 


Of  conflicts  between  the  laws  of  tlie  German  Hnipire 
and  tliose  of  tlie  several  German  states* 


J3IYISI0N  B. 


Of  conflicts  between  tbe  constitution   and  tbe  laws 
of  a  German  state* 


DIYISIOlSr  c. 

Of  tbe  case  of  Garbade  v.  tbe  State  of  Bremen. 


90  HISTORICAL   COMMENTARY. 


DIVISION  D. 


Of  tlie  case  of  K.  and  others  v,  the  Dyke  Board  of 
^iedervieland. 


DIYISIOIS^  E. 
Further  obserrations  upon  the  t^wo  foregfoins:  cases. 

DIYISIOIS^  F. 


Of  the  court  of  the  Imperial  Chamber  under  the  old 
German  Bmpire. 


Chapter  IX.  will  be  devoted  to  an  investigation  of  Ger- 
man public  law  for  light  upon  the  relation  of  judicial  power 
to  unconstitutional  legislation. 


DIYISIOIS^  A. 


Of  conflicts  bet^ween  the  la^ws  of  the  Oerman  Bmpire 
and  those  of  the  several  German  states. 


ISO.  1.  Of  the  constitution  of  the  ^present  German  Em- 
pire. 

No.  2.  Statement  of  the  law  concerning  conflicts  between 
the  laws  of  the  Empire  and  those  of  the  several  .states. 


HISTORICAL   COMMENTARY.  91 

This  division  of  this  chapter  will  discuss  one  of  the  two 
kinds  of  conflicts  of  laws,  whose  constitutional  nature  has 
been  ascertained  according  to  German  public  law. 


No.  1. 
Of  the  constitution  of  the  present  German  Empire. 

The  constitution  of  the  German  Empire  is  a  written  one, 
as  was  its  predecessor  the  constitution  of  the  North  German 
Bund.  The  former  was  promulgated  in  1871  and  has  been 
translated  by  Prof.  James.  "*  The  latter  was  promulgated 
in  1867.  A  translation  will  be  found  in  the  Executive  Doc- 
uments of  the  U.  S.  Senate,  cong.  40,  sess.  2,  no.  9. 

Article  2.  of  the  constitution  of  the  Empire  prescribes  that 
*'the  Empire  shall  exercise  the  right  of  legislation  accord- 
'4ng  to  the  provisions  of  this  constitution;  and  the  laws 
*'of  the  Empire  shall  take  precedence  of  those  of  each  in- 
*' dividual  state;"  (see  James,  page  18).  This  latter  pro- 
vision may  be  compared  with  the  heading  in  lib.  1.  tit.  3, 
§  4  in  Lancelot's  Institutes  (often  printed  as  an  appendix 
to  the  Corpus  Juris  Canonici) :  Inter  discordantia  concilia 
prceponitur  sententia  ejus^  quod  est  majoris  auctoritatis. 

No.  2. 

Statement  of  the  law  concerning  conflicts  between  the  laws 
of  the  Empire  and  those  of  the  seneral  states. 

Conflicts  between  the  laws  of  the  German  Empire  and  the 
laws  of  the  several  German  states  will  now  be  considered. 
The  following  view  of  this  head  of  Geraian  public  law  has 
been  taken  from  Prof.  Laband'  s  Public  Law  of  the  Gemian 
Empire  {Das  Staatsrecht  des  Deutschen  Belches);  II,  119, 
120,  120  notes,  I.  266  note. 

Every  authority,  either  judicial  or  administrative,  which 
has  to  apply  jDoints  of  law  in  the  course  of  itsofiicial  duties 

*  The  Federal  Constitution  of  Germany,  with  an  Historical  Introduction, 
translated  by  E.  J.  James,  Philadelphia,  1890.  (Publication  of  the  Univer- 
sity of  Pennsylvania}.  -- 


92  HISTORICAL   COMMENTARY. 

must  ascertain  what  point  is  applicable  to  the  particular 
case  actually  before  it.  If  conflicting  legal  rules  are  con- 
tained in  the  legislation  or  other  sources  of  law  involved,  it 
must  be  decided  which  of  these  sources  governs  the  actual 
case  according  to  fundamental  principles  of  law,  such  as 
the  precedence  of  a  lex  specialis  over  a  lex  generalise  or  that 
of  a  lex  posterior  over  a  lex  prior.  Such  a  conflict  may 
arise  between  a  law  of  the  Em]3ire  and  a  law  of  a  state  or 
land.  As  the  constitution  of  the  Empire  is  self- evidently 
one  of  the  laws  of  the  Empire,  "^  the  provision  of  its  article 
2d  is  plainly  decisive,  wherever  such  a  conflict  arises.  By 
it,  it  is  provided  that  the  laws  of  the  Empire  take  prece- 
dence over  the  laws  of  the  lands.  That  is  to  say,  such  an 
authority  as  aforesaid,  in  its  decision  of  the  case  before  it, 
must  not  apply  the  rule  of  the  law  of  its  land,  but  the  rule 
of  the  law  of  the  Empire.  The  question  whether  a  conflict 
between  such  laws  exists,  belongs,  however,  to  the  authority 
of  highest  rank  in  the  particular  department  concerned. 
There  is  therefore  a  difference  between  "  the  position  of  the 
''courts  and  that  of  administrative  officials.  In  regard  to 
"  the  latter,  the  decision  of  an  administrative  superior  is 
"  binding  upon  subordinate  officials  and  can  be  decisive  for 
"them  in  other  like  cases.  As  to  the  courts,  however,  the 
"decision  of  the  superior  judicial  tribunal  only  makes  for- 
"mal  law  for  the  particular  case.  Contradictions  between 
"the  law  of  the  Euljm^e  and  the  laws  of  the  lands  may  not 
"only  occur  when  one  of  the  former  prescribes  a  different 
"legal  rule  from  one  of  the  latter,  but  also  when  the  Em- 
"pire  has  expressly  or  tacitly  prohibited  a  legal  rule  exist- 
"ing  in  one  of  the  laws  of  a  land."  The  author  adds 
here  a  foot-note :  "In  application  of  this  principle,  the 
"Court  of  Upper- Appeal  at  Dresden,  by  its  declaration  of 
"  September  27th,  1872,  declared  the  Koyal  Saxon  ordinance 
"of  December  10th,  1870,  to  be  inoperative.  An  abroga- 
"tion  of  the  ordinance  was  made  in  consequence."  The 
author' s  text  thus  continues  :  ' '  there  exists,  besides,  the 
"right  of  the  Empire  to  watch  over  the  execution  of  the 

*  This  coincides  with  the  view  hereinafter  maintained  that  the  constitution 
of  the  United  States  is  one  of  the  laws  of  the  Union. 


HISTORICAL   COMMENTARY.  93 

^'imperial  laws  and  to  supervise  tlie  affairs  enumerated  in 
"article  4tli  of  its  constitution.  The  operation  of  this 
"power  is  not  by  the  emperor,  through  his  minister  the  im- 
"  perial  chancellor,  declaring  the  law  of  the  land  to  be  null, 
"or  by  the  Federal  Council  doing  so,  or  by  either  of  them 
"interfering  immediately  with  the  official  business  of  the 
"authorities  of  the  lands.  The  power  operates  upon  the 
"  prince  of  the  particular  land,  that  is  to  say,  upon  the  cen- 
"  tral  government  of  the  particular  state,  by  a  declaration 
"to  such  state  that  the  law  enacted  by  it  is  inadmissible, 
"and  by  a  requisition  for  the  due  withdrawal  thereof." 
Two  cases  relating  to  this  procedure  are  referred  to  in  foot- 
notes.    The  first  is  as  follows  : 

At  a  session  of  the  Federal  Council  of  the  German  Empire 
on  February  27th,  1871,  the  chair  made  a  communication 
that  a  difference  of  opinion  had  arisen  between  the  Federal 
Chancery  and  the  Senate  of  Bremen  as  to  whether  an  ordi- 
nance of  that  state  was  in  contradiction  with  an  act  of  the 
Enrpire.  After  the  rejjort  of  a  standing  committee,  on  the 
following  November  12th,  the  Federal  Council  resolved  that 
the  ordinance  was  not  in  agreement  with  the  views  which 
had  led  to  the  drafting  of  title  3d  of  the  imperial  act  in  its 
present  shape.  Whereupon  the  plenipotentiary  of  Bremen 
announced  that  the  Senate  of  that  state  would  abrogate 
the  ordinance. 

In  tlie  second  case,  the  Federal  Council  recognizea  by  re- 
solution that  the  enactment  of  legislation  by  the  particular 
lands  or  states,  upon  certain  expressly  specified  matters, 
was  not  precluded  by  tlie  existence  of  certain  imperial  legis- 
lation expressly  mentioned. 

Two  points  in  the  foregoing  exposition  will  attract  the 
special  attention  of  American  lawyers  : 

First,  that  whenever  a  judicial  court  decides  that  a  state 
law  conflicts  with  an  imperial  law  and  must  therefore  yield 
thereto,  its  decision  is  so  limited  to  the  particular  case  that 
it  constitutes  no  precedent  in  the  American  sense  : 

Secondly,  that  such  decision  may,  nevertheless,  lead  the 
state  to  abrogate  its  conflicting  law. 

Since  Prof.  Laband's  work  was  printed,  the  German  Im- 


94  HISTORICAL   COMMENTARY. 

perial  Tribunal  has  decided  two  cases  involving  additional 
matter  of  interest.  In  October,  1887,  in  the  case  of  the 
Prussian  Tax-Fisc  v.  A.  Gr.  Company,  it  was  decided  that 
the  existing  stamp-tax  legislation  of  a  state  was  put  out  of 
vigour  by  the  subsequent  enactment  of  imperial  stamp-tax 
legislation,  but  that  the  former  was  not  ipso  jure  revived  by 
the  repeal  of  the  latter.  See  Decisions  of  the  Beichsgericht 
m  Civil  Causes,  Yol.  19,  p.  181. 

In  the  case  of  the  Imperial  Military  Fisc  v.  the  Municipal- 
ity of  Gotha,  in  1889,  the  Imperial  Tribunal  held  as  follows  : 
the  question  of  the  existence  of  a  judicial  right  of  decision  in 
respect  of  the  constitutionality  of  the  laws  of  the  late  North 
German  Bund  and  the  present  German  Empire  is  still  con- 
testable, although  the  affirmative  thereof  has  been  predomi- 
nantly maintained  :  ' '  Allerdings  ist  die  Frage,  oh  -ein  rich- 
terliches  PriifungsrecM  in  AnseJiung  der  Yerfassungs- 
maessiglceit  con  Bundes-hezw.  Reichsgesetzen  hesteM^  his 
heute  noch  streltig,  wenn  schon  solche  ueherwiegend  hejalit 
wird.^^  Decisions  of  the  ReicftsgericM  in  Civil  Causes, 
vol.  24,  p.  3. 

It  is  thus  certain  that  the  law  of  a  state  must  yield  when- 
ever there  is  legally  a  conflict  between  it  and  the  constitu- 
tion or  other  law  of  the  EmxDire  and  that  in  such  conflict  a 
judicial  tribunal  can  and  must  decide  accordingly.  It  is, 
however,  still  uncertain  whether  a  judicial  tribunal  can  de- 
cide upon  the  questioned  constitutionality  of  a  law  of  the 
Empire. 

DIYISIOlSr  B. 


Of  conflicts  tiet-ween  tlie  constitution  and  tlie  lai^s 
of  a  German  state. 

The  next  head  of  German  public  law,  connected  with  the 
subject,  is  that  of  a  conflict  between  the  state  constitution 
and  a  state  law  in  one  of  the  several  states  of  the  Empire. 
It  is  here  well  to  recall  that,  while  most  of  the  states  of  the 
German  Empire  are  monarchies,  three  are  republics,  viz., 
the  Hanseatic  states  of  Bremen,  Hamburg  and  Lubeck. 


HISTORICAL   COMMENTARY.  95 

The  quotation  from  Bluntschli' s  Public  Law,  previously- 
given,*  is  authority  for  the  proposition  that,  in  1863,  in 
Germany,  no  judicial  court  could  declare  a  law  of  its  state 
to  be  void  because  conflicting  with  the  written  constitution 
of  the  state.  That  proposition  was  in  1883,  and  is  since, 
equally  true  of  the  judiciaries  of  the  several  states  of  the 
German  Empire.  Between  those  two  dates,  however,  two 
most  interesting  cases  have  been  decided,  in  the  first  of 
which  the  truth  of  the  proposition  was  denied  with  great 
ability  by  the  Hanseatic  Court  of  Upper  Appeal  at  Lubeck. 
In  the  second  case,  the  doctrine  of  the  first  was  overruled  by 
the  Imperial  Tribunal  or  supreme  court  of  the  German  Em- 
pire. Thus  with  the  exception  of  a  temporary  recognition 
within  the  limited  territories  of  the  Hanseatic  republics,  the 
proposition  in  question  has  always  been  law  in  the  different 
states  of  Germany  possessing  written  constitutions,  that  is 
to  say,  in  nearly  every  German  state. 


DIVISION  C. 


Of  tlie  case  of  Garbade  v.  tlie  State  of  Bremen. 

The  first  case  was  decided  in  1875.  It  is  that  of  Garbade 
v.  the  state  of  Bremen  and  is  reported  in  Seuffert's  Archives 
for  the  Decisions  of  the  Highest  Courts  of  the  German 
States,  vol.  32,  No.  101.  The  following  is  a  translation  of 
the  decision  of  the  Hanseatic  Court  of  Upper  Appeal,  there 
given  in  the  original : 

''  Positive  directions  like  that  of  article  106  of  the  Prus- 
^'sian  constitutional  charter  sometimes  prohibit  an  official 
"  testing  of  the  legal  validity  of  ordinances  [of  the  sovereign] 
' '  which  have  been  authenticated  in  due  form.  When  such 
"  directions  do  not  exist,  the  judge  has,  according  to  general 
"legal  principles,  both  the  authority  and  the  duty  of  refus- 
''ing  to  apply  an  ordinance  of  the  sovereign  (Landesherr), 
"which,  while  its  provisions  are  those  of  a  law,  has  not 
"  been  enacted  according  to  the  forms  prescribed  for  making 

*  See  chapter  6,  no.  2, 


'b  HISTORICAL   COMMENTARY. 

'  laws  by  the  constitution  cd  the  land.  For  this  purpose, 
'  the  judge  must,  of  course,  first  of  all  examine  whether, 
'  when  the  law  in  question  was  published  it  was  then  ex- 
'  plicitly  stated  that  the  constitutionally  prescribed  forms 
'were  observed.  (See  case  in  Kierulff's  collection,  vol.  5, 
'p.  331.)  The  proper  decision  in  such  a  case,  however,  de- 
'  pends  only  upon  the  question  as  to  what  evidence  is  suf- 
'  ficient  to  put  the  judge  in  a  position  of  ascertaining  with 
'  certainty  that  the  constitutional  forms  for  making  laws 
'  were  complied  with.  The  decision  itself,  therefore,  takes 
'for  granted  that  the  judge  must  have  no  doubt  as  to 
'  the  observance  of  the  constitutionally  prescribed  forms  in 
'  making  the  law  in  question,  and  when  the  decision  has 
'shown  a  condition  of  things,  which  prevents  any  such 
'  doubt,  it  goes  no  farther. 

"  It  is  thus  true  that,  in  cases  of  laws  which  are  not  or- 
'  ganic  ones  altering  the  constitution,  the  judge  must  be 
'  sure  that  the  law,  which  he  is  to  apply,  has  been  made 
'  according  to  constitutional  forms.  Such  being  so,  it  must 
'  be  equally  true  that  the  same  requirement  must  be  met 
'  in  the  case  of  organic  laws  altering  the  constitution,  for, 
'  either  a  part  or  the  whole  of  their  provisions  may  enlarge 
'  or  diminish  existing  rights  as  hitherto  constituted.  For 
'  the  judge  is  as  much  bound  by  the  organic  constitutional 
'law  of  the  land  as  by  any  other  law.'^  If  therefore  the 
'  observance  of  certain  forms  is  constitutionally  prescribed 
'  for  changing  a  constitutional  charter,  it  can  only  be  al- 
'  tered  or  abolished  by  observing  those  forms.  An  ordi- 
'  nary  law  exists  until  it  is  abolished  by  way  of  legislation 
'  according  to  the  forms  prescribed  for  the  enacting  of  laws. 
'  So  too,  a  constitution  exists  until  it  is  abolished  by  way 
'  of  organic  legislation  according  to  the  forms  prescribed 
'  for  changing  the  constitution.  These  points  do  not  in- 
'  elude  a  further  and  a  different  question  as  to  what  are  the 
'conditions  under  which  the  judge  must  feel  convinced 

*  This  doctrine  concerning  a  written  constitntion  was  put  in  print  by  Judge 
Iredell,  in  his  letter  of  an  Elector,  which  was  published  at  Newbern  as  early 
as  August  17th,   1786.     See  Life  of  James  Iredell,  vol.   2,  page  148,  line  14 

et  seq . 


HISTORICAL   COMMENTARY.  97 

**  that  the  requisite  forms  for  altering  the  constitution  have 
''been  observed.  An  answer  to  this  question  is  not,  how- 
*'  ever,  necessary  in  the  case  before  us. 

'*That  case  is  as  follows  : 

*'  A  constitution  has  been  made  in  Bremen,  the  19th  arti- 
*'  cle  of  which  reads  : 

^^^  Property  and  other  private  rights  are  inviolable. 
^^  ^  Cession,  surrender,  or  limitation  of  the  same  for  the 
''^^ general  good  can  only  he  required  in  the  cases  and 
*  *  'forms  prescribed  by  law  and  upon  proper  indemnifica- 
'''tion: 

^'A  law  has  been  enacted  in  Bremen  which  is  an  ordi- 
*' nance  relating  to  rural  communities  dated  28  December, 
*'  1870.  It  conflicts  with  the  said  constitution  and  is  not  an 
"  organic  constitutional  law.     Its  15th  section  reads  thus  : 

^''AZZ  hitherto  existing  exemptions  from  communal 
^''taxes^  so  far  as  not  based  on  federal  laws  or  state 
*' '  treaties^  are  abolished  wltJiout  indemnification.'' 

'*  The  last  named  law  has  been  enacted  according  to  the 
*' forms  prescribed  for  ordinary  legislation  and  therefore 
"ought  to  be  binding  upon  the  judge.  Nevertheless,  if  the 
*■ '  forms  prescribed  for  ordinary  legislation  are  not  sufficient 
"for  legislation  altering  the  constitution,  such  an  act  of  or- 
"dinary  legislation  leaves  the  constitution  intact.  The 
"latter  continues  to  exist  and,  as  long  as  it  does  so,  the> 
"judge  must  hold  it  to  be  an  existing  law.  Hereby  arises; 
"a  conflict  of  legal  provisions.  On  account  of  the  inequal- 
"  ity  of  the  conflicting  laws,  this  conflict  can  not  be  settled 
"upon  the  principle  of  lex  posterior  derogat  legi  prior  i.*" 
"  It  can  only  be  settled  by  an  application  of  the  doctrine 
"that  ordinary  laws  conflicting  with  organic  constitutional 
"laws  can  not  be  enacted. 

"The  judge  is  to  be  considered  competent  to  make  this 
"decision,  even  without  any  authority  having  been  explic- 
"  itly  given  him  by  any  special  law ;  because  he  is  obliged 
"  to  apply  the  laws  and  because  the  application  of  two  ex- 
"isting  laws,   conflicting  with  each  other,  is.  au  impossi- 

*  Compare  Life  of  James  Iredell,  vol.  2,  page  148,  line:  16;  Qt.  ae^.,  and  thOk 
Federalist,  page  543,  in  Dawson's  edition. 

7  0. 


98  HISTORICAL   COMMENTARY. 

'  bility.  The  recognition  of  the  legal  principle,  that  the 
'  judge  is  not  to  apply  a  law  conflicting  with  the  constitu- 
'  tion,  includes  therefore  no  assertion  of  a  superiority  of 
'  the  judge  over  the  lawgiver."^  So  doing  is  merely  an  ac- 
'  knowledgment  of  his  authority,  in  an  actual  case  of  con- 
'  flict,  to  apply  that  law,  which  general  legal  principles  re- 
'  quire  to  be  applied.  In  cases  of  conflict  between  laws  of  the 
'  Empire  and  laws  of  the  land,  there  exists  a  written  legal 
'  provision  for  the  settlement  thereof.  In  the  case  of  a  con- 
'  flict  between  laws,  which  are  of  different  import  but  ema- 
'  nate  from  the  legislative  power  of  the  same  state,  there 
*  enters  the  legal  principle  that  ordinary  laws  must  not  con- 
'  flict  with  the  provisions  of  the  organic  constitutional  law. 
'It  may,  perhaps,  be  objected  that,  when  the  legislative 
'  authorities  have  under  forms  of  ordinary  legislation,  en- 
'  acted  a  law,  which  the  judge  deems  to  be  in  contradiction 
'  to  the  provisions  of  the  constitution,  those  authorities 
'have  themselves  previously  considered  the  question 
'  whether  such  a  contradiction  exists.  Granting  this,  how- 
'  ever,  the  resulting  obligation  of  the  judge,  in  such  a  case, 
'  does  not  extend  beyond  weighing  carefully  the  reasons 
'  on  both  sides  of  the  question  in  a  way  like  that  which  he 
'  must  follow  in  another  and  similar  case.  This  other  case 
'  is  that  in  which  he  is  comj)elled  to  declare,  in  opposition 
'  to  the  legislative  authorities  of  a  particular  state,  that  a 
'  law  made  by  them  contradicts  the  laws  of  the  Empire. 

"Now  the  constitutional  charter  of  Bremen,  dated  Feb- 
'  ruary  21st,  1854,  in  its  article  67,  establishes  certain  for- 
'  malities,  by  observing  which,  alterations  of  the  constitu- 
'  tion  can  alone  be  made,  t  The  observance  of  these  for- 
'  malities  in  enacting  the  law  of  December  28th,  1870,  would 
'  have  been  considered  sufficient  for  the  adoption  of  any 
'law  altering  the  constitution.  According  to  the  docu- 
'  ments  before  us,  it  can,  however,  by  no  means  be  admit- 
'  ted  that  this  was  done  ;  there  being  no  indication  that,  in 

■^  Compare  Life  of  James  Iredell,  vol.  2,  page  148,  line  27  et  seq.,  and  the 
Federalist,  page  541,  in  Dawson's  edition. 

t  That  is  to  say,  alterations  of  the  written  constitution  of  Bremen  can  only 
be  made  in  pursuance  of  itself. 


HISTORICAL   C0M3IENTAPwY.  99 

**the  case  of  the  law  of  December  28th,  1870,  anything 
^' other  than  an  act  of  ordinary  legislation  was  in  question. 
''This  being  so,  the  result  arrived  at  in  the  reasons  given 
"for  the  previous  part  of  this  judgment,  including  likewise 
' '  the  consequences  deduced  therefrom,  directly  follow  as  a 
''matter  of  course." 

In  concluding  this  account  of  the  judgment  of  the  Han- 
seatic- Court  of  Upper  Appeal,  it  ought  to  be  added  that  it 
seems  probable  that  that  tribunal  was  greatly  influenced  by 
the  whole  of  Yon  Mohl's  treatise  on  "Unconstitutional 
Laws"  and  especially  by  its  pages  79  and  80.  See  his 
MonograpJiie  ueber  die  recMUche  Bedeutung  verfass- 
ungswidriger  Gesetze  in  his  work  entitled,  StaatsrechU 
Voellcerreclit  und  PolitiTc,  (Tuebingen,  1860),  vol.  1,  pages 
66-95.  Von  Mohl  was  undoubtedly  influenced  by  Ameri- 
can ideas  and  writings,  as  i)ages  69  and  71  of  the  above 
work  prove.  He  expressly  mentions  the  authors  of  the 
Federalist,  Story  and  Kent.  He  does  not  name  Marshall 
but  must  have  been  influenced  by  his  views.  Elsewhere  he 
expresses  great  admiration  for  the  Chief  Justice. 


DIVISION  D. 

Of  tlie  case   of  K.  and  others  r.  tlie  Dyke  Board  of 
^iederrieland. 

The  case  of  Garbade  v.  the  State  of  Bremen  was  expressly 
overruled,  some  eight  years  later,  by  the  Imperial  Tribunal. 
This  was  done  in  the  case  of  K.  ^.  the  Dyke  Board  of 
Niedervieland,  which  was  also  a  Bremen  case.  It  is  re- 
ported in  the  Decisions  of  the  ReichsgericM  in  Civil  Causes, 
vol.  9,  page  233.  From  the  original  report,  the  following  is 
partially  abstracted  and  partially  translated. 

Tlie  suit  was  originally  brought  in  the  Land  Court  of  Bre- 
men by  K.  and  other  interested  parties  against  the  Dyke 
Board  of  Medervieland  in  the  State  of  Bremen.  Thence  an 
appeal  was  taken  to  the  Superior  Land  Court  of  Hamburg  in 
second  instance.     Recourse  in  third  and  final  instance  was 


100  HISTOEICAL   COMMENTARY. 

then  liad  to  the  BelchsgericM  or  supreme  court  of  the  German 
Empire.  The  original  plaintiffs,  who  were  finally  defendants, 
claimed  that  their  well-acquired  rights,  as  commoners  of  a 
swine  pasture,  had  been  violated  by  the  Dyke  Board  jDro- 
ceeding  under  section  29  of  the  dyke  ordinance  of  Bremen, 
a  state  of  the  German  Empire.  That  ordinance  was  an  act 
of  ordinary  legislation  and  its  section  29  was  alleged  to  be 
in  conflict  with  the  provisions  of  the  written  constitution  of 
Bremen  which  prohibited  legislation  impairing  well-acquired 
rights  of  property. 

On  behalf  of  K.  and  the  other  commoners  it  was  contended, 
inter  alia,  that  the  said  section  of  the  dyke  ordinance  was 
an  invalid  law  because  it  conflicted  with  the  constitution  as 
aforesaid.  All  the  questions  raised  in  the  case  were  de- 
cided in  favour  of  the  Dyke  Board.  The  constitutional 
questions  are,  however,  the  only  ones  requiring  mention 
here.  The  following  extracts  are  translated  from  the  por- 
tion of  the  decision,  which  relates  to  the  constitutional 
branch  of  the  case.  This  final  Judgment  in  third  instance 
was  given  on  February  17th,  1888.  In  it  the  court  of  second 
instance  is  alluded  to  as  the  court  of  appeal : 

"The  principle  is  maintained  by  the  court  of  appeal  that, 
*'when  two  interpretations  of  a  law  appear  possible  to  a 
* '  judge,  one  conflicting  and  the  other  not  conflicting  with 
*'the  constitution,  the  former  is  simply  to  be  rejected: 
"and  this  is  laid  down  universally  and  without  limitation, 
' '  (as  is  indicated  by  the  court' s  use  of  the  words  '  sclion 
''desTialh ').  So  laid  down,  this  principle  can  not  be  recog- 
"  nized  as  correct. 

"When  both  the  form  of  a  law  and  the  procedure  of 
"  its  enactment  are  not  those  prescribed  for  an  alteration  of 
"the  [written]  constitution,  it  may  happen  that  a  particular 
"interpretation  thereof  may  according  to  the  judge's  view 
"  be  in  conflict  with  a  principle  of  the  constitution.  Prop- 
"  erly,  this  circumstance  must  be  considered  only  one  of  the 
"reasons  determining  the  interpretation  of  the  law.  It  can 
"only  be  a  decisive  one  when,  exclusive  of  it,  the  grounds 
"for  one  or  other  of  the  two  contradicting  interpretations 
*'are  equally  balanced.      The  court  of  appeal  contented 


HISTORICAL   COMMENTARY.  101 

'itself  with  mentioning  that  the  interpretation  given  in 
'  first  instance  by  the  Land  Court  to  section  29  of  the  dyke 
'  ordinance  was  not  one  of  actual  necessity,  although  its 
'  view  of  the  constitutional  repugnancy  of  the  section  was 
'based  upon  that  interpretation.  The  court  of  appeal, 
'  therefore,  attributed  too  great  weight  and  significance  to 
'the  interpretation  made  by  the  Land  Court,  while  not 
'  holding  the  same  merely  in  itself  to  be  fully  satisfactory. 
'  In  so  doing,  the  court  of  appeal  overlooked  weighty  con- 
'  siderations,  proper  in  seeking  to  ascertain  the  legislative 
'  will.  Among  these  was,  especially,  that  of  the  question 
'  as  to  what  was  the  purpose  of  the  law,  and  what  value  ac- 
'  cording  thereto  one  interpretation  had  when  compared 
'  with  the  other.  The  omission  to  consider  that  question 
'  further  involved  the  loss  of  an  available  means  of  assist- 
'  ance  which  would  otherwise  have  been  obtainable. 

" There  remains  to  be  considered  only 

'  the  question  left  undecided  by  the  appellate  court,  namely, 
'  whether  section  29  of  the  dyke  ordinance  shall  be  denied 
'  the  force  of  binding  law,  because  it  is  only  an  act  of  ordi- 
'  nary  legislation,  while  the  constitution  is  a  law  of  a  higher 
'  order.  In  a  similar  case,  such  denial  was  made  by  the 
'  formerly  existing  Court  of  Upper  Appeal  at  Lubeck.  (See 
'Seuffert's  Archives,  vol.  32,  No.  101*).  This  view,  how- 
'  ever,  can  not  be  acceded  to.  On  the  contrary,  the  cor- 
'  rect  view  on  this  head  is  that  which  was  taken  by  the 
'  same  court  in  another  case  only  a  few  years  before.  (See 
'Kierulff's  Collection,  vol.  7,  page  234).  This  correct  view 
'  is  as  follows :  the  constitutional  provision  that  well- 
'  acquired  rights  must  not  be  injured,  is  to  be  understood 
'  only  as  a  rule  for  the  legislative  i^ower  itself  to  interpret, 
'  and  does  not  signify  that  a  command  given  by  the  legis- 
'  lative  power  should  be  left  disregarded  by  the  judge  be- 
'  cause  it  injures  well-acquired  rights. f  This  is  said  with- 
'  out  affecting  the  question  whether  the  state  may  or  may 

*  The  case  of  Garbade  v.  the  State  of  Bremen  previously  given. 

tThat  is  to  say,  the  text  is  addressed  to  the  legislature  and  not  to  the  judi- 
ciary, to  use  language  modelled  after  that  of  C.  J.  Marshall  in  Marbury  v. 
Madison  in  1  Cranch,  page  179,  paragraph  beginning  ;     "Here  the  language." 


102  HISTORICAL   COMMENTARY. 

' '  not  be  bound  to  grant  damages  ;  a  matter  not  here  brought 
''into  consideration.  There  is,  therefore,  no  occasion  to in- 
"  vestigate  whether  well-acquired  rights  have  been  violated 
' '  or  not.  The  question  is  not  whether  a  particular  principle 
"  of  the  constitution  has  been  altered  or  not ;  but  whether 
"the  law  could  have  been  enacted  without  an  alteration  of 
' '  the  constitution  itself,  and  therefore  without  applying  the 
"forms  prescribed  for  such  alteration.  This  last  question, 
"however,   is  one  which  can  not    be  examined  by  the 

"judiciary." "*.     . 

The  case  above  mentioned  in  KieiniLff's  collection,  vol.  7, 
page  234,  is  that  of  Krieger  n.  the  State  of  Bremen,  decided 
by  the  Hanseatic  Court  of  Upper  Appeal  on  June  15th,  1872. 
On  the  page  cited,  the  court  declares  it  to  be  law  that  the 
constitutional  principle,  which  prohibits  the  injury  of  well- 
acquired  rights  by  legislation,  is  to  be  understood  only  as  a 
rule  for  the  legislative  power  itself  :  that  it  does  not  signify 
that  a  command,  which  is  given  by  the  legislative  power,  is 
to  be  disregarded  by  the  judiciary  because  it  injures  well- 
acquired  rights.  This  is  said  with  a  saving  as  to  whether 
the  state  may  or  may  not  be  bound  to  grant  remuneration 
for  the  injury. 


DIVISIOlSr  E. 

Furttier  otisenration  upon  tlie  t^wo  foregfoing:  cases. 

In  order  fully  to  appreciate  the  divergence  of  the  two 
foregoing  decisions,  it  must  be  recollected  that  in  the  con- 
tinental states  of  Europe  the  courts  of  law  have  not,  as  a 
rule,  the  power  to  decide  upon  the  legality  or  illegality  of 
the  administrative  acts  of  executive  officials.  Such  questions 
seem  to  be  regarded  as  matters  of  public  right  and  so  prop- 
erly withheld  from  the  courts,  whose  jurisdiction  over  civil 
rights  should  not  extend  beyond  private  right.  It  can 
hardly  be  denied  that  every  American  lawyer,  who  holds 
that  judicial  courts  are  competent  to  decide  questioned  laws 
to  be  constitutional  or  unconstitutional,  presupposes  that 


HISTORICAL   COMMENTAEY.  103 

the  same  courts  are  competent  to  decide  questioned  execu- 
tive acts  to  be  legal  or  illegal.  Indeed,  it  is  safe  to  assert, 
that  every  American  must  ponder  long  before  he  can  under- 
stand how  a  judiciary  which  can  not  question  an  executive 
act,  can  question  an  act  of  legislation.  When  judicial 
power  was  in  America  extended  to  cases  arising  under  written 
constitutions,  which  involved  the  unconstitutionality  and 
resultant  invalidity  of  legislation,  that  extension  was  par- 
tially due  to  originality  in  creating  new  institutions  and  was 
partially  the  effect  of  existing  causes.  One  of  the  most 
potent  of  existing  causes  must  have  been  that  the  judges  in 
every  land  of  the  Common  law  could  decide  upon  the  legal- 
ity or  illegality  of  the  executive  acts  of  officials.  It  has 
been  said  in  France  that  judges  should  not  be  comj^etent  to 
decide  laws  to  be  unconstitutional  because  the  judiciary  is 
a  feeble  power.  Doubtless,  it  is  correct  to  say  that  the  ju- 
diciary is  a  feeble  power  in  France  and  other  Civil  law  coun- 
tries. But  in  all  the  lands  of  the  Common  law,  whether  in 
the  Eastern,  the  Western,  or  the  Southern  hemisphere,  the 
judiciary  is  not  a  feeble  power,  and  never  has  been.  The 
Common  law  judiciary  grew  and  developed  together  with 
the  trial  by  peers  and  by  jury,  and  with  a  law  of  the  land 
that  bound  the  ruler  of  the  land  as  well  as  the  ruled  thereof. 
Therefore  in  all  Common  law  communities  the  judiciary  is 
strong.  Very  different  were  the  institutions  amid  which 
the  existing  judiciaries  of  the  Civil  law  countries  of  Europe 
took  form  and  shape.  Therefore  they  are  feeble.  Conti- 
nental princes  and  assemblies  of  estates  were  very  different 
from  kings  and  parliaments  in  England.  Above  all,  on  the 
European  continent,  the  criminal  tribunals  were  not  courts 
of  justice,  but  courts  of  injustice  ;  for,  trial  by  torture,  not 
trial  by  jury,  was  their  rule.  Consequently,  it  is  not  strange 
that  written  constitutions  have  been  established  in  Common - 
law  and  Civil-law  communities  with  different  results  as  to 
the  constitutional  rights  and  duties  of  the  judicial  power. 


104  HISTORICAL   COMMENTAKY. 


DIVISION  F. 

Of  tlie  court  of  tlie  Imperial   Cliaiiitier  under   tlie 
old  German  Hmpire. 

The  foUowing  remark  is  translated  from  Bluntschli's  work 
above  mentioned,  vol.  I,  p.  560  : 

''In  composite  states  there  is  an  opportunity  to  provide 
"for  the  legislative  power  of  the  several  states  being  held 
' '  within  bounds  by  the  judicial  system.  The  federal  or  im- 
''  perial  constitution  will  possess  organs  for  the  maintenance 
''of  law  throughout  the  whole  confederacy  or  empire,  to 
' '  which  the  chief  authorities  of  the  several  states  are  to  a 
"certain  extent  subordinated.  Such  was  the  significance 
"of  the  Court  of  the  Imperial  Chamber  in  the  later  period 
"of  the  [former]  German  Empire.  The  Supreme  Court  of 
"  the  United  States  has,  as  we  have  seen,  an  extended  com- 
"  petency  of  this  sort." 

The  Court  of  the  Imperial  Chamber  above  mentioned  is 
referred  to  in  the  Federalist,  No.  80,  "^  and  by  Randolph  in 
argument  in  Chisholm  v.  Georgia,  2  Dallas,  425,  at  dates 
when  it  was  still  in  existence.  In  both  instances  such 
reference  was  made  by  a  Framer  of  the  constitution.  The 
remarks  in  the  Federalist  are  interesting  in  themselves  and 
also  in  connection  with  those  on  the  then  existing  institu- 
tions of  the  old  German  Empire  in  No.  lO.f 

In  the  Tuebingen  Zeitschrift  for  Political  Sciences,  1888, 
44th  year,  p.  383,  will  be  found  an  account  of  a  case  in  the 
Imperial  Chamber  between  the  Baron  of  Frauenhofen, 
plaintiff,  and  the  Elector  of  Bavaria,  defendant.  In  it,  the 
following  were  among  the  judicial  questions  arising  for  the 
decision  of  the  court :  whether  the  lordships  of  the  Old  and 
New  Frauenhofen  were  free  lordships  held  immediately  of 
the  Emperor  and  the  Empire  :  whether  the  Elector  of 
Bavaria  and  his  ancestors  had  unduly  claimed  to  bring  those 
lordships  under  their  territorial  superiority  and  so  into 


*  Dawson's  Edition,  page  554. 
t  Dawson's  Edition,  p,  119. 


HISTORICAL   COMMENTARY.  105 

mediate  and  not  immediate  feudal  relation  to  the  Empire. 
Upon  these  questions  it  depended  whether  the  Barons  of 
Frauenhofen  were  or  were  not  subjects  of  the  Electors  of 
Bavaria,  as  lords  of  the  land.  The  case  was  a  never-ending 
one.  It  lasted  through  generations  and  was  not  finally  ad- 
judicated, when  the  old  Empire,  and  with  it,  the  Court  of 
the  Imperial  Chamber  ceased  to  exist. 


CHAPTER  X. 
Of  tlie  Roman  la^w  in  connection  nvitli  tlie  subject. 

DIVISION  A. 
Preliminary* 

DIVISION  B. 

Of  the  la^w  of  rescripts  in  the  classic  period  of  the 
Roman  jurisprudence. 

DIVISION  C. 
Of  the  la^w  of  rescripts  in  Justinian's  time. 

DIVISION  D. 

Of  certain  points  in  the  jits  legum  of  the  Roman 

republic. 


106  HISTORICAL   COMMENTARY. 

This  Chapter  will  begin  the  examination  of  the  Roman 
law,  for  light  npon  the  subject  of  this  Essay. 


DIVISION  A. 
Preliminary. 

In  the  foregoing  cases  it  will  be  observed  that  the  written 
constitutions  mentioned  are  all  junior  to  the  constitution  of 
the  United  States.  Any  consideration  of  them,  therefore, 
regards  things  unknown  to  the  Framers.  When  their  con- 
vention met  in  1787,  eleven  states  of  the  Union  possessed 
written  constitutions,  two  of  which  had  been  adopted  in 
1776  before  July  4th,  while  the  constitutions  of  the  two  re- 
maining states  were  unwritten.  Written  constitutions  were 
then  still  unknown  abroad.  They  are  now  the  rule,  and  not 
the  exception,  on  the  continent  of  Europe. 

The  chapters  following  will  be  concerned  with  unwritten 
constitutions,  and,  for  the  most  part,  with  laws  and  systems 
older  than  the  constitution  of  the  United  States.  With 
those  laws  and  systems,  the  Framers  were,  or  may  be  pre- 
sumed to  have  been,  familiar. 

The  Roman  law  prevails  on  the  continent  of  Europe  and 
has  a  certain  restricted  vigour  in  England.  The  principles 
of  the  Roman  law  bearing  upon  the  subject  will  first  be  in- 
vestigated. 

DIVISION  B. 

Of  tlie  la-w  of  rescripts  in  tlie  classic  period  of  tlie 
Roman  jurisprudence. 

Under  this  branch  of  the  investigation,  the  law  of  re- 
scripts as  developed  in  Rome  during  the  earlier  empire  will 
first  be  considered. 

At  a  period  when  the  world- embracing  legislative  power 
of  the  emperors  and  a  renowned  jurisprudence  existed  to- 
gether in  Rome,  the  law  of  rescripts  was  as  follows,  if  the 
writer  has  correctly  understood  the  exposition  in  Weiske's 
RecTitslexicon^  IX,  pages  285,  286. 


HISTORICAL   COMMENTARY.  107 

Rescripts  were  laws,  but  there  was  an  important  distinc- 
tion between  ''them  and  other  laws."  In  imperial  edicts, 
as  in  the  former  republican  leges^  the  legislative  will  un- 
doubtedly laid  down  general  propositions  of  law,  and  there 
was  rarely  any  doubt  as  to  who  was  bound  thereby.  The 
regular  interpretation  thereof  was  confined  to  the  subject 
of  the  meaning  of  the  law  so  laid  down.  In  the  case  of  re- 
scripts, however,  all  this  could  be  doubtful  and  often  was 
so.  The  legal  effect  of  a  rescript,  as  a  whole,  depended  upon 
interpretation.  Whether  it  was  to  be  held  general  legisla- 
tion or  not,  depended  upon  the  special  interpretation  of 
jurisconsults  or  ^ri^dZd^Ti^e^,  who  could  and  did  use  freedom 
of  judicial  judgment  in  their  official  responses  thereupon. 
A  rescri];)t  was  not  necessarily  authority  for  a  generally 
binding  proposition  of  law.  Interpretation  must  decide 
whether  or  not  the  imperial  disposition  was  based  upon  a 
legal  rule  of  general  aj)plication.  Frequently,  the  disposi- 
tion made  in  an  act  of  the  emperor  was  appropriate  only  to 
a  particular  case  and  its  extension  to  other  cases  was  not 
intended  by  the  prince.  Such  acts  were  called  personal 
constitutions ;  Dig.  lib.  1.  tit.  k.  I.  1.  %  2,  Hence  when  a 
rescript,  which  might  or  might  not  be  a  personal  constitu- 
tion, was  adduced  as  authority  for  a  rule  of  law,  recourse 
was  in  some  cases  had  to  legal  reasons  other  than  its  au- 
thority in  order  to  establish  the  rule,  so  that  thereby  all 
doubt  might  be  removed  concerning  its  vigour  as  an  act  of 
general  legislation.  In  other  cases,  a  like  free  judgment 
was  exercised,  in  order  to  prove  that  a  doubtful  rescript  was 
a  personal  constitution  and  so  without  vigour  as  general 
legislation.  ' '  Rescripts,  which  undoubtedly  laid  down  ^ 
''generally  applicable  proposition  of  law,  could  be  termed 
'' gener  alia  rescript  a  in  opposition  to  j9dr507iaZm,  and  the 
"  expression  was  actually  used  in  that  sense."  {Dig.  lib. 
35.  tit.  2.  I.  89.  §  1;  Dig.  lib.  26.  tit.  k.  I.  1.  %  S ;  Dig.  lib. 
28.  tit.  5.  I.  9.%  2.) 

If  the  above  be  correct,  it  is  true  that  in  Rome,  at  a  cer- 
tain date,  official  jurisconsults  or  prudeides  were  compe- 
tent to  decide  the  question  whether  an  imperial  rescript  was 
a  general  or  personal  constitution,  and,  according  to  their 


VBT 


108  HISTORICAL   COMMEISTTARY. 

decision  of  that  question,  a  given  rescript,  if  decided  to  be 
general,  was  held  to  be  binding  in  all  cases  ;  but,  if  per- 
sonal, then  to  be  binding  only  in  the  particular  case.  This 
last  was  not,  indeed,  holding  a  legislative  act  to  be  void, 
but  it  was  holding  that  a  legislative  act  was  void  of  vigour 
in  all  cases  except  one. 

The  following  references  may  be    added    to  the  above 
given :     Inst.  lib.  1.  tit.  2.  %8 ;  Gaii  Inst.  I.  5,  7. 


DIVISION  C. 
Of*  tlie  la^^v  of  rescripts  in  Justinian's  time. 

The  law  of  rescripts,  in  the  shape  in  which  it  is  found  in 
the  code  of  Justinian,  next  requires  consideration.  Nor- 
mally, these  rescripts  were  binding  only  in  the  particular 
cases  for  which  they  were  made.  A  rescript  of  this  sort 
had  only  the  vigour  of  a  law  between  the  parties  thereto. 
It  did  not  have  the  vigour  of  a  general  law.  Such  is  the 
proper  interpretation  of  the  passage  in  Justinian's  Insti- 
tutes, lib.  1.  tit.  2.  §  6 :  quodcumque  ergo  imperator  per 
epistolam  constituit^  vel  cognoscens  deer  exit  ^  vel  cdicto 
proecepit^  legem  esse  constat.  See  Reiffenstuel's  Jus  Canon- 
icwn,  ed.  1864,  vol.  I.  page  217. 

Upon  this  portion  of  the  law  of  Justinian,  two  texts  of 
the  code  will  be  examined.  The  first  is  Cod.  lib.  1.  tit.  22. 
1.  6.^  where  it  is  said  :  "  We  admonish  all  judges  of  every 
"administration,  greater  or  less,  in  our  whole  common- 
"  wealth  that  in  the  trial  of  every  sort  of  litigation,  they 
"permit  no  rescript,  no  pragmatic  sanction  and  no  imperial 
"adnotation  to  be  alleged  before  them,  which  seems  to  be 
"adverse  to  general  law  or  to  public  utility  :  but  that  they 
"  have  no  doubt  that  general  imperial  constitutions  are  to 
"  be  observed  in  every  way."  Omnes  cujuscunque  major  is 
Del  minor  is  administrationis  universce  nostrce  reipublicce 
judices  monemiis  :  ut  nullum  rescriptum^  nullum  prag- 
maticam  sanctionem^  nullum  sacram  adnotationem,  quce 
generali  juri  Del  utilitati  publicce  adversa  esse  videatar^  in 
disceptationem  cujuslibet  litigii  patiantur  proferri :   sed 


HISTORICAL   COMMENTARY.  109 

generates  sacras  constitut tones  Tnodls  omnibus  non  dubl- 
tent  ohservandas. 

By  this  text,  when  any  rescript  of  the  emperor  was  pleaded 
in  a  court,  the  judge  must  pass  upon  the  question  whether 
it  was  or  was  not  adverse  to  general  law  or  to  public  utility. 
If  it  were  so  adverse,  the  judge  must  reject  it.  That  is 
to  say,  the  rescript  was  then  invalid ;  which  term  is  sug- 
gested by  the  words  non  valeant  found  in  another  text.  Cod. 
lib.  1.  til.  19.  I.  ^.,  containing  a  general  constitution  pre- 
scribing that  certain  rescripts  non  aliter  imleant  than  upon 
a  particular  condition.  It  will  be  observed  that  while  the 
text  requires  judges  to  weigh  well  the  admission  of  re- 
scripts, it  prescribes  that  they  must  have  no  doubt  about 
observing  all  general  constitutions. 

The  second  text  is  Cod.  lib.  1.  tit.  19.  I.  7.  which  says  : 
' '  We  command  that  rescripts  which  are  obtained  from  us 
'''contra  jus  shall  be  rejected  by  all  judges  unless  perchance 
*' there  be  something  therein  which  injures  not  another  and 
* '  proHts  him  who  seeks  it,  or  gives  pardons  for  crime  to 
^'  the  suppliants."  Bescripta  contra  jus  elicita^  ah  omni- 
bus judicibus  refutari  prcecipimus :  nisi  forte  sit  ali- 
quid,  quod  non  Icedat  alium^  et  prosit  pete/di^  vel  crimen 
suppUcantibus  indulgeat. 

By  this  text  it  appears  that  a  judge  must  pass  upon  the 
question  whether  or  not  a  rescript  has  been  obtained  contra 
gus^  certain  specified  cases  excepted.  If  it  be  judicially  as- 
certained to  have  been  obtained  contra  jus^  it  must  be  re- 
jected, that  is  to  say,  be  held  invalid. 

It  thus  appears  that,  according  to  the  Code  of  Justinian, 
an  imperial  judge  might  decide  a  rescript  of  the  emperor  to 
be  contrary  to  general  law  or  to  public  utility,  or  to  be  ob- 
tained contra  jus.  When  the  judge  so  decided  against  the 
rescript,  he  held  it  invalid.  •  When,  however,  the  judge's 
decision  was  in  favour  of  the  rescript,  it  had  the  vigour  of  a 
written  lex  within  the  legal  limits  restricting  the  operation 
of  such  legislation  and  was  judicially  applied  in  a  case 
within  those  limits. 


110  HISTORICAL   COMMENTARY 


DIVISION  D 


Of  certain   points  in  ttie  jus  legum  of  tlie   Roman 

Republic. 

It  is  here  necessary  to  repeat  that  this  investigation  re- 
lates only  to  cases  in  which  a  judicial  tribunal  consisting  of 
either  one  or  several  judges,  can  hold  a  law  to  be  wholly  or 
partially  void,  because  of  reasons  judicially  ascertained  and 
decided.  The  investigation  does  not,  therefore,  include 
within  its  limits  those  acts  of  the  Roman  senate  by  which 
it  judged  that  challenged  laws  were  nullities.  Some  men- 
tion thereof  will,  however,  be  useful. 

A  lex  was  a  written  law  constituted  by  the  lawfully  as- 
sembled people  upon  the  rogation  of  a  magistrate.  No 
private  person  could  move  the  people  to  legislate.  In  cer- 
tain contingencies  the  senate  could  decide  whether  a  chal- 
lenged enactment  was  or  was  not  a  law.  When  so  doing, 
its  decisions  were  made  according  to  the  jus  legum  or  law 
of  laws.  Such  decisions  de  jure  legum  are  adverted  to  in 
Cicero's  oration  for  his  house  before  the  pontiffs. 

In  his  oration,  Cicero  maintained  that  the  enactment  by 
which  he  was  banished  was  no  law  :  legem  quidem  islam 
nullam  esse.'^  It  had  been  abrogated, f  but  he  maintained 
that  it  was  a  nullity  from  the  beginning  for  divers  reasons. 
One  was  that  it  had  been  passed  upon  the  rogation  of  Clo- 
dius  as  tribune.  Such  ^  rogation  was  a  nullity,  for  that 
pseudo-plebeian  was  incompetent  to  be  tribune.:!: 

In  chapters  26  and  27  Cicero  says  ^'for  as  often  as  the 
''senate  said  sentence  concerning  me,  so  often  it  judged 
"that  that  law  was  null,  since  by  that  writing  of  that  man 
''[Clodius]  it  was  prohibited  from  saying  any  sentence. 
"  .  .  .  .  The  senate,  whose  judgment  is  most  weighty 
''concerning  the  law  of  laws,  as  often  as  it  rendered  an 
"opinion  concerning  me,  so  often  judged  that  the  same  was 

*  Oration,  cap.  26. 

t  Ersch  &  Grueber  :  article  Cicero,  197,  cf.  196. 

X  Oration,  cap.  13  to  cap.  16. 


HISTORICAL   COMMENTAKY.  Ill 

"null."  Nam  legem  quidem  istam  nullam  esse^  quotiens- 
cumque  de  me  senatus  sententiam  dixit ^  totiens  judicavit  : 
quoniam  quidem  scripto  illo  istius  sententiam  dicer e  veta- 
hatur.  .  .  .  Benatus  quidem^  cujus  est  gravissimum  judi- 
cium de  jure  legum^  quotienscumque  de  me  constdtus  est^ 
totiens  eam  nullam  esse  judicavit. 

The  precedent  of  the  nullity  of  the  laws  of  Marcus  Dru- 
sus,  is  mentioned  by  Cicero  in  chapter  16.  The  Senate  had 
judged  that  the  people  were  not  bound  by  the  laws  of  M. 
Drusus,  which  had  been  made  contrary  to  the  Caecilian 
and  Didian  law :  sin  eadem  ohservanda  sunt.,  judicamt 
senatus  M.  Drusi  legihus^  quae  contra  legem  Caeciliam 
et  Didiam  latae  essent^  populum  non  teneri. 

The  lex  Caecilia  et  Didia  was  a  portion  of  t\iejus  legum 
which  jjrohibited  the  proposal  of  any  law  containing  two 
or  more  matters  not  germane.  "^  It  may  be  compared  with 
the  similar  legislations  in  some  American  constitutions, 
which  have  been  caused  by  the  so-termed  '*  omnibus  laws."t 

It  should  be.  remarked  that  when  Cicero  said  that  the 
^&nsitQ^s  judicium  de  jure  legum  was  most  weighty,  he  used 
the  word  judicium  in  a  sense  not  judicial. 

This  power  of  the  senate  was  distinct  from  its  power  of 
legislating  by  senatus- consulta.  Ortolan  observes  that 
Maintz  has  shown  that  the  pretended  right  of  abrogating 
laws,  which  Asconius  attributes  to  the  senate,  is  nothing 
else  than  the  right  of  testing  the  obligatory  force  thereof,  if 

In  connection  with  the  subject  of  this  Essay,  it  may  be 
remarked  that  the  study  of  the  Homnn  jus  legum  teaches  a 
very  important  constitutional  lesson.  It  was  intended  to 
regulate  the  legislative  power  of  the  Roman  people.  There 
are  thinkers  who  believe  that  the  best  polities  are  those  that 
have  a  legislature  which  is  governed  exclusively  by  its  own 
will.     Such  a  view  is  at  variance  both  with  the  unwritten 

*  See  Smith's  Dictionary  of  Antiquities,  article  lex,  pages  559,  561. 

t  A  colonial  example  of  royal  objection  to  such  legislation  will  be  found  in 
the  instructions  to  the  Governor  of  North  Carolina,  dated  December  14th, 
1730.  See  Saunders's  Colonial  Records  of  North  Carolina,  vol.  3,  page  94,  no.  15. 

X  Ortolan  :  Legislation  Eomaine.  ed.  11,  vol.  1.  No.  289,  text  and  notes. 


112  HISTORICAL    COMMENTARY. 

republican  constitution  of  Rome  and  with  the  written  re- 
publican constitutions  of  America. 

The  Roman  people  legislated  in  original  assembly.  Rep- 
resentative assemblies  of  legislators  were  unknown  in  an- 
tiquity. The  Jus  legum  was  the  Jus  populi  bIso.^  It  used 
both  law  and  religion  to  regulate  the  legislative  power  of 
the  Roman  people  and  to  govern  them  in  the  exercise 
thereof.  The  augurs,  as  representatives  of  religion,  were 
habitually  consulted  in  the  course  of  legislation.  It  is  said 
that  the  Roman  augurs  sometimes  laughed  in  secret  on 
solemn  occasions.  They  are  not  the  only  persons  connected 
with  legislation,  that  have  scandalized  religion.  Modem 
legislators  have  sometimes  done  so  by  violating  their  oaths. 

There  are  resemblances,  as  well  as  diJSerences,  between 
the  legal  restrictions  upon  the  legislative  power  of  the  Ro- 
man people  under  the  republican  constitution,  and  the  legal- 
restrictions  upon  the  legislative  power  of  a  representative 
assembly  under  a  written  constitution.  Thus  the  resem- 
blance between  the  lex  Caecilia  et  Didia  and  constitutional 
clauses  against  "omnibus  laws"  is  quite  a  remarkable  one. 
But  the  differences  between  the  Roman  republican  constitu- 
tion and  American  written  constitutions  do  not  prevent 
them  uniting  in  teaching  the  same  lesson,  mz.^  that  the  best 
legislature  is  not  one  exclusively  governed  by  its  own  will. 
The  generation  which  framed  and  ratified  the  constitution 
of  the  United  States  learned  that  lesson  well,  as  is  proved 
by  Iredell' s  paper  written  in  1786  and  reprinted  in  chapter 
26,  post.  Had  they  not  learned  it,  the  constitution  of  the 
United  States  would  never  have  existed.  Some  different 
instrument  of  union  would  have  been  made.  It  would  have 
been  one  adapted  to  a  union  between  states  having  parlia- 
ments uncontrolled  by  written  constitutions. 

The  constitution  of  the  United  States  contains  a  law 
of  laws  which  binds  senators  and  representatives  in  legislat- 
ing as  much  as  the  Roman  Jus  legum  bound  the  Roman 
j)eople  in  legislating.  In  some  cases  this  law  of  laws  is  ex- 
pressed in  clear  terms  by  the  constitutional  text,  e.  g.^  the 

*  See  Cicero  pro  Dovio,  cap.  XV,  at  the  end. 


HISTORICAL   COMMENTARY.  113 

Congress  shall  make  no  law  for  the  establishment  of  re- 
ligion. In  other  cases  it  is  not  expressly  written.  One  of 
the  most  remarkable  peculiarities  of  this  constitutional  jus 
legum  is  that  it  binds  judges  in  deciding  as  well  as  legis- 
lators in  legislating.  This  peculiarity  is  intimately  con- 
nected with  the  subject  of  this  Essay.  Does  the  constitution 
express  or  imply  the  truth  that  its  jus  legum^  which  binds 
legislators  in  legislating,  also  binds  judges  in  deciding? 
According  to  the  chief  contention  of  this  Essay,  the  con- 
stitution expresses  that  truth  and  does  not  merely  imj^ly  it. 


CHAPTER  XL 


Further  consideration  of  tlie  relation  of  tlie  Roman 
lai^  to  tlie  subjecto 


DIVISION  A. 


Of  tlie  Tieinrs  of  the  Civilian  Bo-wyer  on  the  constitu* 
tion  of  the  United  States. 


DIVISION  B 


Of  the  Roman  la^w  of  mandate  and  the  deles:ation  of 
les^islative  po^ver* 


DIVISION  0. 


Of  Vattel's  doctrine  concerning:  leg-islatiTe  power 
and  the  relation  thereof  to  the  Roman  law  of  man- 
date, on  one  hand,  and  to  American  constitutions^ 
on  the  other* 

8  C. 


114  HISTORICAL   COMMENTARY. 

Chapter  XI.  will  further  consider  the  relation  of  the  Ro- 
man law  to  the  subject.  The  next  matter  concerning  that 
law  requiring  examination  is  a  general  one.  It  is  this  :  Do 
the  general  principles  of  the  Roman  or  Civil  law  raise  any 
presumption  contrary  to  the  propriety  of  judges  criticising 
a  law  made  under  a  written  constitution,  in  order  to  ascer- 
tain whether  it  is  actually  constitutional  or  unconstitutional 
and  valid  or  void  accordingly  ? 


Divisioisr  A. 


Of  tlie  Tie^ws  of  tlie  Civilian  Bowj  er  upon  tlie  consti- 
tution of  tlie  United  States. 

In  this  connection  the  views  of  the  English  Civilian 
Bowyer  may  be  referred  to  with  much  edification.  His 
works  contain  sympathetic  apxireciations  of  the  constitution 
of  the  United  States  which  are  made  from  the  point  of  view 
of  one  familiar  witn  both  American  works  upon  constitu- 
tional law  and  Civilian  works  upon  public  law.  In  discuss- 
ing American  views  upon  the  "right  of  the  courts  to  pro- 
"nounce  legislative  acts  void,  because  contrary  to  the  con- 
"stitution,"  he-is  of  opinion  that  "  this  doctrine  is  strictly 
"in  accordance  with  the  j)rinciples  of  public  law.  The  act 
"of  a  delegated  authority  contrary  to  the  commissioner 
"beyond  the  commission  under  which  it  is  exercised,  is 
"  void.  Therefore  no  legislative  act,  .contrary  to  the  consti- 
"  tution,  can  be  valid."  In  support  of  this  proposition,  his 
authority  is  the  text  of  the  Roman  law,  Dig.  lib,  17.  tit.  1, 
I.  5  :  "  Diligenter  fines  mandati  custodiendi  sunt:  nam 
''qui  excess  it,  aliud  quid  facer  e  mdetur.'^  ("The  limits 
"of  a  mandate  are  to  be  diligently  preserved ;  for  he  who 
"has  exceeded  them  is  deemed  to  do  something  other 
"  than  that  in  the  mandate.")  Bowyer  :  Universal  Public 
Law,  343,  344. 

In  his  Readings  in  the  Middle  Temple  in  1850,  pages  82, 
S3,  Bowyer  also  discusses  the  same  subject.  He  observes  : 
''  We  may  safely  say  that  the  federal  government  ot  the 


HISTORICAL   COMMENTARY.  115 

"United  States  could  not  long  exist  without  tlie  extraordi- 

"  nary  jurisdiction  which  we  are  now  examining 

"  The  act  of  a  delegated  authority,  contrary  to  the  commis- 
' '  sion  or  beyond  the  commission  under  which  it  is  exercised, 
' '  is  void.  Diligenter  fines  mandaii  ciistodiendi  sunt :  nam 
'''•qui  excessit^  aliud  quid  facer  e  mdetur.  He  who  acts  be- 
"yond  his  commission  acts  without  any  authority  from  it. 
"Now  the  judicial  power  can  declare  void  the  acts  of  the 
' '  legislative  power  where  those  acts  are  beyond  the  dele- 
"  gated  power  of  the  legislature,  and  therefore  not  legisla- 

' '  tive  acts  except  in  form  only These  con- 

"  stitutional  questions  are  cases  of  conflict  between  a  funda- 
"  mental  law  and  an  ordinary  act  of  the  legislature,  in  which 
"the  judges  must  be  governed  by  the  fundamental  law. 

" Thus  the  ordinary  statutes  of  the  United 

"  Statues  are  lex  sub  gramori  lege^ 

The  grave  importance  of  this  application  of  the  Roman 
law  requires  it  to  be  remembered  that  the  t^ext  of  the  Roman 
law  in  question  {Dig.  lib.  17.  tit.  1.  I.  6)  relates  to  matter 
of  private  right  and  that  Bowyer  applies  it  to  matter  of  pub- 
lic right.  There  is,  however,  important  authority  for  the 
application  of  the  rules  and  principles  of  mandate  to  pub- 
lic law.  This  is  expressly  stated  by  Bowyer  himself,  in  his 
work  upon  the  Civil  Law,  pp.  225,  226,  227.  This  he  does 
upon  the  authority  of  publicists  whose  writings  were  fami- 
liar to  the  Framers  of  the  constitution :  Vattel,  IV,  5, 
par.  56  ;  Puffendorf,  III,  9,  par.  2 ;  Grotius,  II,  2,  par.  12 ; 
II,  21,  par.  1 ;  III,  22,  par.  4,  No.  2. 


DIVISION  B. 

Of  the  Roman  law  of  mandate  and  the  deleg^ation 
of  lesfislative  po^v^er. 

The  cases  from  Vattel,  Puffendorf,  and  Grotins  may  be 
deemed  conclusive  as  to  the  application  of  the  Roman  prin- 
ciples of  mandate  to  public  as  well  as  to  private  law  upon 
one  condition,  namely,  that  a  power  to  legislate  is  such  a 
one  as  can  be  given  by  a  mandate.     All  the  cases  just  re- 


116  HISTOEICAL   COMMENTARY. 

f  erred  to  relate  to  other  descriptions  of  public  powers.  The 
question,  therefore,  arises  whether  according  to  the  Roman 
law  a  j)ower  of  legislation  could  be  given  by  mandate.  To 
this  question  an  affirmative  answer  can  be  given. 

During  the  republican  period,  the  legislative  power  be- 
longed to  the  Roman  people.  By  a  process  of  revolution  they 
lost  it  and  the  Roman  emperor  became  lawgiver.  But  the 
legal  view  differed  from  the  historical  view.  In  notion  of  law, 
the  emperor  derived  his  title  to  his  legislative  power  from  the 
Roman  people.  They  were  held  to  have  granted  to  him  by 
a  law,  called  the  lex  regia^  the  imperium  and  potestas  be- 
longing to  themselves.  See  Inst.  lib.  1.  tit.  '2.  §  6^  Gail 
Inst.  I.  5,  Dig.  lib.  1.  tit.  ^.  I.  1.  Even  if  no  lex  regia  was 
in  fact  enacted,  the  notion  of  its  existence  was  accepted  as 
true  by  lawyers  and  others  including  the  people  themselves. 
If  this  notion  was  erroneous,  it  is  not  the  only  great  case  in 
history  in  which  the  official  statement  concerning  funda- 
mental legislation  is  erroneous. 

Bowyer  points  out  that,  although  the  lex  regia  was 
apochryphal,  yet  the  assertion  of  such  a  delegation  of  sov- 
ereign power  to  the  emperor  by  the  people,  makes  it  evident 
that  the  Roman  law  did  not  attribute  a  divine  origin  to  the 
imperial  authority."^ 

The  eminent  historian,  Prof.  Mommsen,  has  examined  the 
Roman  law  of  legislation  under  mandate.  His  treatise  on 
the  Lex  for  Salpensa  and  the  Lex  for  Malaca  contains  im- 
portant observations  relating  to  \\\q  emperor's  power  of 
legislation,  t  The  correct  legal  view,  he  holds,  is  that  it 
was  based  on  the  lex  regia  and  was  a  power  of  legislation 
given  by  the  mandate  of  the  people  to  the  emperor.  Man- 
dates delegating  legislative  powers  had  existed  in  the  repub- 
lican period.  Legislation  by  the  Roman  people,  he  terms 
immediate.  That  made  by  virtue  of  a  mandate  to  exercise 
legislative  power,  he  terms  mediate  legislation. 

Among  the  questions  which  Mommsen  had  occasion  to 
discuss  are  two  here  requiring  notice.     One  is  whether  a 

*  Bowyer' s  Civil  Law,  page  29. 

t  In  the  Proceedings  of  the  Eoyal  Saxon  Society  of  Sciences,  vol.  3,  pages 
390  et  seq. 


HISTORICAL   COMMENTARY.  117 

single  individual  could  receive  the  delegation  of  such  legis- 
lative power.  This  he  answers  in  the  affirmative.  The  other 
is  whether  the  term  lex  was  ever  applied  to  any  of  the 
acts  of  legislation  enacted  by  such  an  individual.  This 
second  question  he  answers  affirmatively  also.  Examples 
of  leges  mediately  enacted  are  stated  to  be  found  in  the  re- 
publican period  in  cases  in  which  the  Roman  people  granted 
to  a  magistrate  having  imperium^  (who  was  usually  a  mili- 
tary commander-in-chief),  either  the  legislative  power  of 
giving  the  right  of  citizenship  to  foreigners,  or  the  power  of 
enacting  legislative  regulations  for  dependent  communities 
or  provinces.  A  more  ancient  example  is  found  in  the  power 
of  a  Roman  citizen  to  make  his  testament  in  the  cases  in 
which  the  proceeding  by  mancipation  was  used."^  This 
power  was  based  upon  a  general  mandate  given  by  the 
twelve  tables  to  every  individual  citizen  respectively  to  en- 
act mediately  a  lex  in  a  case  in  which  the  poj^ular  curiae 
had  previously  done  so  immediately. 

That  the  emperor  had  included  in  the  legislative  power 
delegated  to  him  individually  the  right  to  legislate  for  a 
dependency  such  as  Malaca  in  the  form  of  a  lex  and  to  do 
so  without  innovating,  is  held  to  have  been  unquestionable  in 
point  of  law.  ' '  Just  as  a  judicium  could  proceed  from  im- 
'' per  turn  given  by  mandate  as  validly  as  from  original  impe- 
* '  rium,  so  a  lex  could  proceed  from  power  of  legislation  given 
' '  by  mandate  as  validly  as  from  original  legislative  power. 
"  The  technical  term  for  passing  mediate  legislation  is  legem 
''  dare^  as  that  for  passing  immediate  legislation  on  rogation 
''of  the  people  is  legem  rogare:  so  that  our  municipal  law 
"is  termed  a  lex  data.  In  this  shape,  the  mediate  legisla- 
"tion  by  the  emperor  continued  to  be  exercised  for  making 
"  grants  of  citizenship  and  conceding  municipal  rights,  long 
"after  the  immediate  legislation  by  the  people  had  become 
"antiquated." 

Recurrence  may  now  be  had  to  Sir  George  Bowyer's  opin- 
ion concerning  the  constitution  of  the  United  States.  He 
holds  that  its  system  of  legislative  and  judicial  powers  is 

*  See  Oaii  Inst.  II.  101,  102,  103. 


118  HISTOEICAL   COMMENTARY 

strictly  in  accordance  with  the  principles  of  public  law  in- 
volved, which  are  based  upon  the  Roman  law  of  mandate. 
It  is  not  a  good  objection  to  Bowyer's  position  to  say  that 
the  principles  of  mandate  must  be  restricted  to  cases  of  pri- 
vate law  and  private  powers,  and  cannot  be  extended  to 
cases  of  public  law  and  governmental  powers.  Ample  au- 
thority has  been  shown  to  exist  for  the  extension  of  the 
Roman  principles  of  mandate  to  cases  of  public  law  and 
governmental  powers,  including  power  of  legislation. 

Besides  general  reasons,  a  special  one  exists  for  tile  fore- 
going defence  of  the  application  of  tlie  legal  principles  of 
mandate  to  matters  of  public  law.  In  the  case  of  the  State 
of  Georgia  v.  Stanton,  Grant  and  Pope,  6  Wallace  50-78, 
the  U.  S.  Supreme  Court  decided  that  the  judicial  power 
does  not  extend  to  cases  arising  under  the  constitution  and 
laws  of  the  United  States,  in  wliich  the  rights  in  danger  are 
merely  political  rights.  It  extends  only  to  cases  arising 
thereunder  in  which  the  rights  in  danger  are  those  of  per- 
son and  properly.  Tliis  distinction  between  political  rights 
and  rights  of  person  and  property  has  considerable  resem- 
blance to  the  distinction  between  public  and  private  law  and 
that  between  private  and  governmental  powers.  The  re- 
semblance is,  indeed,  great  enough  for  the  foregoing  dis- 
cussion of  the  law  of  mandate  to  require  no  other  justifica- 
tion. 

Divisioisr  c. 

Of  Vattel's  doctrine  concerning:  leg-islative  po^wer 
and  tlie  relation  thereof  to  tlie  Roman  la^w  of  man- 
date, on  tlie  one  liand,  and  to  American  constitu- 
tionS)  on  tlie  otlier* 

Thus,  according  to  the  Roman  law,  the  principles  of  man- 
date can,  with  propriety,  be  applied  to  legislative  as  well 
as  to  other  powers. 

No  objection  can,  therefore,  be  made  to  Bowyer's  views 
of  the  U.  S.  constitution  on  the  ground  that  he  errs  in  his 
views  of  Roman  law. 

Some  readers  may,  however,  object  that  Bowyer  erro- 


HISTORICAL   COMMENTARY.  119 

neonsly  attributes  to  tlie  framers  and  ratifyers  of  the  con-, 
stitution  certain  views  wliicli  have  a  Roman  law  origin  and 
were  foreign  to  their  intentions  and  purposes. 

Any  such  objection  would  be  an  erroneous  one. 

The  legal  history  of  American  constitutions  is  in  harmony 
with  the  foregoing  exposition  of  the  application  of  the 
Roman  law  of  mandate  to  public  powers. 

Yattel,  in  discussing  the  legislative  power  of  a  state  and 
the  authority  of  those  entrusted  with  it,  raises  the  question 
whether  their  power  extends  as  far  as  to  the  fundamental 
laws,  so  that  they  may  change  the  constitution  of  the  state. 
He  maintains,  "that  the  authority  of  these  legislators  does 
"not  extend  so  far,  and  that  they  ought  to  consider  the 
"  fundamental  laws  as  sacred,'  if  the  nation  has  not,  in  very 
"express  terms,  given  them  the  power  to  change  them. 
"For  the  constitution  of  the  state  ought  to  be  fixed  :  and 
' '  since  that  was  first  established  by  the  nation,  which  af ter- 
* '  wards  trusted  certain  persons  with  the  legislative  power, 
^' the  fundamental  laws  are  excepted  from  their  commis- 

'^  sion In  shorty  these  legislators  derive  their 

'''  power  from  the  constitution;  how  then  can  they  change  it^ 
""^  without  destroying  the  foundation  of  their  authority  .^"* 

This  doctrine  of  Yattel  as  to  the  commissions  of  legisla- 
tors applied  the  Roman  principles  of  mandate  to  every  con- 
stitution and  was  published  before  written  constitutions  ex- 
isted, f  On,  the  one  hand,  thus  related  to  the  Roman  law, 
it  is  on  the  other  intimately  connected  with  the  early  Ame- 
rican decisions  rejecting  statutes  as  void  because  unconsti- 
tutional. 

In  1786  in  Rhode  Island  in  the  great  historical  case  of 
Trevett  «.  Weeden,  the  Civilian  publicist's  words  are  quoted 
and  applied  by  Varnum  in  his  argument,  pages  24,  25,  26, 
as  hereinafter  more  fully  explained.:]: 

*  Vattel,  book  1,  cap.  3,  sec.  34. 

t  Vattel  died  in  1767.  As  a  jurist  he  was  of  course  a  civilian.  As  a  pub- 
licist, he  was  the  fourth  of  a  series,  of  which  Grotius,  Puffendorf  and  Wolff 
were  the  preceding  three.  See  Nouvelle  Biographic  Generate  and  Encyclopaedia 
Britannica  under  his  name. 

i  See  Varnum's  pamphlet  on  Trevett  v.  Weeden,  pages  24,  25,  26,  and  chap- 
ter 25,  post,  on  the  case. 


120  HISTORICAL   COMMENTARY. 

In  1787  in  North  Carolina,  in  the  great  historical  case  of 
Bayard  ??.  Singleton,  the  Superior  Court  of  that  state,  with- 
out naming  Yattel,  applies  his  doctrine,  in  saying  that  the 
general  assembly  could  not  alter  or  repeal  the  constitution 
without  destroying  their  existence  as  a  legislature.!  In 
Yanhorne  v.  Dorrance  in  1795,  Judge  Patterson  strongly 
applies  YatteFs  doctrine  in  his  charge  to  a  U.  S.  jury  but 
without  naming  him  :  See  2  Dallas  page  308.  Judge  Wood- 
bury's  opinion  in  Luther  v.  Borden,  7  Howard  66,  links 
Patterson  and  Yattel  together  and  re-asserts  their  opinions. 

On  page  541  of  the  Federalist  (Dawson's  edition),  it  is 
said  in  very  general  terms  but  without  citation  of  authority : 

' '  There  is  no  position  which  depends  on  clearer  princi- 
"ples,  than  that  every  act  of  a  delegated  authority,  con- 
^'  trary  to  the  tenor  of  the  commission  under  which  it  is  ex- 
''ercised,  is  void.  No  legislative  act,  therefore,  contrary 
"to  the  constitution,  can  be  valid." 

Yattel  is  the  link  connecting  this  doctrine  of  the  Feder- 
alist with  the  Roman  law  of  mandate. 

•Thus  it  is  shown  that  Bowyer  was  justified  in  attributing, 
to  the  framers  and  ratifyers  of  the  constitution,  views, 
which  had  a  Roman  law  origin  and  were  interwoven  with 
their  intentions  and  purposes.  His  regarding  the  constitu- 
tion from  a  Roman  law  point  of  view  has  not  led  him  into 
historical  error  as  to  the  ideas  involved  in  the  frame  of  the 
constitution. 

Before  legislation  under  a  constitution  can  be  held  void 
according  to  the  above  mentioned  doctrine,  it  must  be  ascer- 
tained and  decided  to  be  contrary  to  the  constitution.  Some 
jurists  have  maintained  that  the  question,  whether  legisla- 
tion be  according  or  contrary  to  a  constitution,  must  be  an 
extrajudicial  question.  Others  have  maintained  that  it 
may  be  a  judicial  question.  Such  a  difference  of  opinion 
can  only  exist  under  a  particular  constitution,  when  its  text 
is  silent  upon  the  question  whether  the  previous  question  is 
a  judicial  or  an  extrajudicial  one.  When  the  text  is  not 
silent  and  makes  the  question  a  judicial  one,  men  may  dif- 

t  See  Martin's  Reports,  first  divisiou,  50,  and  second  edition.  1.  45,  and  chap- 
ter 26,  post  on  the  case. 


HISTORICAL   COMMENTARY.  121 

fer  as  to  the  wisdom  of  the  framers  of  such  a  constitution, 
but  not  as  to  the  Jus  legum  under  it. 

The  foregoing  doctrine  does  not  conflict  with  that  of  ^Ir. 
Cooley,  according  to  which  legislative  power  can  not  be 
delegated.  "^  What  is  there  really  meant  is  not  the  delega- 
tion, but  the  subdelegation,  of  legislative  power  by  a  legis- 
lature under  a  written  constitution.  By  the  Roman  law, 
whenever  a  jurisdlctio  mandata  was  given  by  legislation 
to  a  magistrate,  he  could  not  transfer  it.  Whatever  in- 
herent jurisdiction  a  magistrate  had  in  right  of  his  office,  he 
could  transfer  by  mandate  to  another  proper  person.  That 
is  to  say,  a  magistrate  could  delegate  his  inherent  jurisdic- 
tion, but  could  not  subdelegate  his  delegated  jurisdiction  : 
^eeDig.  lib.  1.  tit.  21. 1.  1.  Mr.  Cooley' s  doctrine  as  to  the 
subdelegation  of  legislative  power,  be  it  correct  or  incorrect, 
resembles  this  Roman  doctrine  as  to  the  subdelegation  of 
jurisdiction. 


CHAPTER  XII. 
Of  ttie  Canon  la^w  and  its  relation  to  tlie  subject. 

No.  1.  Of  the  partition  of  power  between  church  and 
state^  or  the  division  into  spiritual  and  temporal  powers. 

No.  2.  Account  of  a  case  in  the  Court  of  the  Rota  Romana 
in  16Jf8^  in  wJiich  legislation  of  the  Republic  of  Genoa  con- 
cerning testaments  was  held  null  because  judicially  as- 
certained and  decided  to  be  contrary  to  the  liberty  of  the 
church. 

No.  3.  Of  the  texts  of  the  Corpus  Juris  Canonici  concern- 
ing the  nullity  of  temporal  legislation  affecting  the  rights 
of  the  church. 

*  Constitutional  Limitations,  Ed.  1,  116:  Ed.  2,  139. 


122  HISTORICAL   COMMENTARY. 

No.  4.  Of  a  case  before  the  Court  of  the  Rota  Romana  in 
1638^  in  which  it  was  held  that  the  legislative  acts  of  two 
])ojpes^  as  temporal  princes^  were  not  to  he  accounted  good 
against  a  third  party ^  because  they  were  decided  to  be  pre- 
judicial  to  his  well-acquired  right  under  a  contract. 


Chapter  XII.  will  be  devoted  to  a  general  consideration  of 
the  Canon  law  in  connection  with  the  subject.  By  a  gen- 
eral consideration  is  meant  one  not  confined  to  the  working 
of  the  Canon  law  in  a  particular  state.  A  special  considera- 
tion of  the  Canon  law  in  England  will  be  made  in  the  subse- 
quent chapter. 

No.  1 

Of  the  partition  of  power  between  church  and  state^  or 
the  division  into  spiritual  and  temporal  powers. 

The  consideration  of  the  subject  in  connection  with  the 
Canon  law  is  concerned  with  matter  of  the  highest  import- 
ance, for  it  involves  an  investigation  of  the  partition  of  power 
between  church  and  state,  or  the  division  into  spiritual  and 
temporal  powers.  This  division  of  the  powers  by  which 
society  was  governed  was  the  constitution  of  Europe  for 
centuries.  The  Canon  law  was  thus  part  of  the  constitu- 
tional law  of  every  land  of  the  Roman  obedience,  including 
England,  before  the  Reformation. 

I  The  whole  weight  of  the  jurisprudence  of  the  Canon  law 
is  thrown  in  favour  of  the  doctrine  that  a  law,  which  is  made 
by  a  legislature  or  lawgiver  without  i)roper  power,  is  null 
and  void.!  Centuries  ago,  in  the  states  and  countries  where 
the  Latin  church  [)revailed,  the  Canon  law  authorities  felt 
compelled  to  assume  this  position.  They,  doubtless,  thought 
it  necessary  in  order  that  the  partition  of  power  between 
church  and  state,  or  the  division  into  spiritual  and  temporal 


HISTORICAL   COMMENTARY.  123 

powers,  should  be  a  living  reality,  and  tliat  the  Latin  church 
in  Western  Europe  should  escape  a  dependency  upon  the 
state  like  that  of  the  Greek  church  in  the  Greek  Empire. 

The  following  case  in  the  Court  of  the  Rota  Romana  was 
decided  in  1648  and  explains  the  doctrine  upon  the  subject. 
It  was  one  concerning  Roman  lands  arising  under  the  testa- 
ment of  Antonia  Spinola,  a  citizen  of  the  Republic  of  Genoa. 
The  following  account  is  translated  and  abridged  from  the 
Decisiones  Mecentlores  of  the  Rota  Romana,  part  10,  de- 
cision 231.  As  some  may  prefer  the  full  original  text  of 
the  decision,  it  is  inserted  in  Appendix  No.  2.  to  this  Essay. 


No.  2. 

Account  of  a  case  in  the  Court  of  the  Rota  Romana  in  IGJ^B, 
in  lohich  legislation  of  the  Republic  of  Genoa  was  held 
null  because  judicially  ascertained  and  decided  to  he 
contrary  to  the  liberty  of  the  church. 

Among  other  hereditary  property  which  had  belonged  to 
the  deceased  Antoniia  Spinola  of  Genoa  were  certain  mount- 
ain places  of  pasture,  which  had  been  detained  by  her 
brother,  Francis  Spinola,  as  her  heir  ah  intestato.  The 
pastures  were  situate  in  Roman  teriitory.  Whereupon, 
John  Baptist  dei  Prancki,  the  heir  written  in  her  testament, 
brought  suit  in  the  court  of  the  Roman  Rota.  The  cause 
was  introduced  before  Cerri,  Dean  and  one  of  the  auditors 
of  the  Rota.  John  Baptist  asked  for  a  mandate  of  immis- 
sion  into  possession.  This,  Francis  contended  should  be 
denied,  making  the  two  defences  following. 

P^irst,  because  the  testament  of  Antonia  did  not  have  the 
lawful  number  of  witnesses,  having  been  made  with  only 
five.  Seven  witnesses  in  all  were  rightfully  required  accord- 
ing to  Inst.  lib.  2.  tit.  10.  §  i^,  and  if  one  were  wanting, 
the  testament  was  bad  by  Cod.  lib.  6.  tit.  23.  I.  12. 

Secondly,  because  the  statute  of  Genoa,  in  the  rubrick 
concerning  testaments  and  last  wills  in  chapter  12.  of  its 
book  1.,  prohibited  Genoese  subjects  from  making  any 
priest  or  clerical  Juan  a  testamentary  executor,  or  hdeicom- 


124  HISTORICAL   COMMENTARY. 

missary,  under  penalty  of  the  testament  being  null  quoad 
7ioc.  Wherefore,  as  John  Baptist  was  a  clerical  man,  the 
testament  was  of  no  validity  as  to  him. 

Notwithstanding  these  things  it  was  resolved  that  the  im- 
mission  into  possession  should  be  given  to  John  Baptist, 
because  it  was  not  controverted  that  the  mountain  pastures 
were  the  hereditary  property  of  Antonia,  and  because  a  tes- 
tament was  exhibited  which  was  neither  obliterated,  nor 
cancelled,  nor  subject  to  suspicion  in  any  part,  according  to 
Cod,  lib.  6.  tit.  33.  I.  3. 

Tlie  first  objection  was  decided  to  be  without  force,  because 
the  statute  of  Genoa  under  the  same  rubrick  made  a  dispo- 
sition, which  prescribed  that  a  testament,  or  last  will,  should 
be  firm  and  valid,  when  proved  by  a  public  instrument  in 
which  five  witnesses  were  described.  Wherefore,  as  in  the 
testament  in  question  there  were  found  fi\Q  witnesses,  its 
validity  and  subsistence  could  not  be  impugned.  The  stat- 
ute could  diminish  the  number  of  witnesses  required  by  the 
Civil  law  ;  a  iDroposition  for  which  authorities  are  given. 

Moreover,  it  could  not  be  maintained  that  the  aid  of  such 
a  statutory  disposition  must  be  excluded  because  the  testa- 
ment was  made  in  the  church  of  the  Society  of  Jesus  at 
Genoa,  which  was  a  place  exempted  from  the  jurisdiction 
of  the  enactors  of  the  Genoese  statute.  This  would  be  so,  if 
the  matter  concerned  "an  odious  statute,"  requiring  greater 
solemnities  than  were  required  by  the  Civil  law.  But  it 
was  otlierwise,  when  the  question  related  to  "a  favourable 
statute,"  which  diminished  the  solemnities  of  the  Civil  law. 
Authorities  on  these  heads  are  given. 

The  second  objection  of  the  defence  was  also  decided  to 
fall  to  the  ground,  for  the  following  reasons.  That  i)art  of 
the  statute  of  Genoa,  upon  which  it  relied,  deprived  clerical 
men  of  a  faculty  belonging  to  them  by  the  dispositions  of 
both  the  Civil  law  and  the  Canon  law  :  Cod.  lib.  1.  tit. 
B.  56.  §  1.  ;  Decretal,  lib.  3.  tit.  26.  c.  9.  &  19.  Its  enactors 
spoke  in  restrictive,  prescriptive  and  prohibitive  words  di- 
rected against  persons,  and  making  express  mention  of  cler- 
ical men.  TJte  statute  in  this  part  was  judicially  held  to 
he  null  in  the  following  remarkable  words  • 


HISTORICAL   COMMENTAKY.  125 

^^  as  contrary  to  ecclesiastical  liberty  it  is  null  ipso 
"facto  et  jure  from  defect  of  the  power  of  the  laymen  en- 
"  acting  it :  tanquam  contra  libertatem  ecclesiastic  am 


Numerous  authorities  are  given  in  support  of  this  decla- 
ration of  the  law,  which  cover  citations  from  twenty  doc- 
tors of  Canon  law.  They  are  classified  into  such  as  support 
it  when  the  lay  statutes  do  either  of  three  things :  (1), 
when  they  deprive  clerical  men  of  what  is  by  law  conceded 
to  them ;  (2),  when  they  are  preceptive,  restrictive  or  pro- 
hibitive as  to  clerical  men ;  (3),  when  their  dispositions 
make  express  mention  of  clerical  men  and  churches,  even 
when  they  so  do  favourably  and  by  way  of  granting  j)rivi- 
leges. 

Such,  as  well,  was  the  law,  if  the  active  and  prohibitive 
words  of  the  statute  should  seem  not  to  be  directed  against 
the  persons  of  clerical  men,  but  against  the  person  of  the 
testator.  As  had  been  said,  there  was  contrariety  to  eccle- 
siastical liberty  when  the  statute  either  deprived  clerical 
men  of  a  benefit  belonging  to  them  by  law  or  made  express 
mention  of  them  as  above  mentioned.  It  sufficed  that  the 
statute,  by  prohibiting  executory  competency  virtually  and 
indirectly  as  against  the  persons  of  clerical  men,  so  touched 
and  injured  them,  for  it  to  be  of  no  strength  and  firmness 
{ut  inde  nullius  sit  rohoris^  etfirmitatis).  Laymen  could 
not  legislate  concerning  ecclesiastical  persons  nor  concern- 
ing their  property,  either  directly  or  indirectly,  because  the 
same  were  not  under  their  jurisdiction.  For  these  proposi- 
tions authorities  are  given. 

John  Baptist  had  availed  himself  of  the  disposition  of 
one  part  of  the  Genoese  statute  which  made  the  testament 
valid  with  only  five  witnesses.  This  did  not  impose  upon 
him  any  obligation  to  accept  the  other  part  of  the  statute* 
which  provided  that  clerical  men  should  not  be  constituted 
fideicommissaries,  or  testamentary  executors.  These  propo- 
sitions are  considered  fully  and  authorities  supporting  them 
are  adduced.  Furthermore,  a  critical  examination  of  the 
terms  of  the  testament  suj^ported  the  conclusion  that  the 


126  HISTORICAL   COMMENTARY. 

testatrix  must  be  held  to  have  made  a  disposition  ad  pias 
causas.  Such  a  disposition  could  be  sustained  by  two  wit- 
nesses only,  as  the  adduced  authorities  showed. 

The  law  of  the  decision  as  to  lay  statutes  was  that  of  the 
whole  court,  whose  membership  was  large.  All  its  mem- 
bers, too,  agreed  to  the  justice  of  the  resolution  giving  John 
Baptist  the  mandate  of  immission  into  possession  of  the 
mountain  places.  In  consultation,  however,  a  minority  of 
two  lords  of  the  court  considered  that  the  terms  of  the  Ge- 
noese statute  should  be  construed  in  a  more  restricted  man- 
ner than  had  been  done.  They  thought  that  it  prohibited 
only  executory  competency,  and  should  not  be  extended  to 
John  Baptist's  case,  who  was  heir  written  in  the  testament. 
Further,  that  the  prohibitions  of  the  statute  related  only  to 
the  execution  of  profane  matters.  Such  a  disposition  would 
not  be  contrary  to  ecclesiastical  law,  which  prescribes  that 
clerical  men  should  not  take  part  in  lay  business. 
,  In  concluding  the  account  of  this  decision,  a  selection 
from  the  editor's  summary  or  head  notes  will  be  given. 

"8.  A  statute  contrary  to  ecclesiastical  liberty  is  ipso 
^'jure  null"  :  Statutum  contra  libertatem  ecclesiasUcam 
est  ipso  jure  nullum. 

"  9.  A  statute  made  by  laymen  even  favourable  to  clerical 
"men  and  to  the  church  is  ipso  jure  null"  :  Statutum 
etiam  clericis^  et  eccleslae favor ahile^  conditum  a  laicis  est 
ipso  jure  nullum. 

"10.  That  a  lay  statute  may  be  of  no  strength  and  mo- 
"  ment,  it  suffices  that  it  touch  and  injure  clerical  men  only 
"  virtually  and  indirectly":  Statutum  laicale  ut  nullius 
sit  rohoris^  et  momenti  sufficit,  quod  etiam  virtualiter^  et 
indirecte  clericos  tangat^  et  laedat. 

"11.  Laymen  can  not,  either  directly,  or  indirectly,  leg- 
"  islate  concerning  ecclesiastical  persons,  or  their  property"  : 
Laid  non  possunt  neque  directe^  neque  indirecte^  de  per- 
sonis  ecclesiasticis^  eorumque  bonis  disponere. 

The  Canon  law  related  to  a  partition  of  powers  between 
church  and  state  in  Europe.  The  constitution  of  the  United 
States  contains  a  partition  of  powers  between  the  Union  and 


HISTORICAL   COMMENTARY.  127 

the  states.  The  constitutions  of  the  United  States  and  of 
the  several  states  contain  partitions  of  powers  between 
legislative,  executive  and  judicial  departments  of  govern- 
ment. 

The  foregoing  Rotal  decision  shows  that  it  was  jurispru- 
dential for  Canon  law  courts  to  decide  whether  temporal  leg- 
islation was  or  was  not  contrary  to  ecclesiastical  liberty  and 
to  hold  it  null  or  valid  accordingly. 

If  it  were  jurisprudential  for  Canon  law  courts  so  to  do, 
it  is  equally  jurisprudential  for  American  courts  to  decide 
whether  legislation  is  or  is  not  contrary  to  a  constitution  and 
to  hold  it  void  or  valid  accordingly. 

American  constitutions  originated  no  unprecedented  nov- 
elty in  making  judicial  courts  competent  so  to  proceed  and 
decide.  Canon  law  courts  had  proceeded  and  decided  in  a 
similar  manner  long  before  the  framers  of  the  first  American 
constitution  were  born. 


No.  3. 

Of  the  texts  of  the  Corpus  Juris  Canonici  concerning  the 
nullity  of  temporal  legislation  affecting  the  rights  of 
the  church. 

The  foregoing  decision  was  made  in  1648,  but  the  doctrine 
of  the  case  is  much  more  ancient.  Perhaps  the  most  fre- 
quently cited  canon  on  the  subject  is  the  cap.  Ecclesiae 
Sanctae  Mariae  or  Decretal,  lib.  1.  tit.  2.  cap.  10^  which 
dates  from  1199.  It  declares  that  every  lay  statute  affecting 
churches,  whether  favourably  or  unfavourably,  is  of  no 
strength,  unless  approved  by  the  church :  nullius  firmitatis 
exlstit^  nisi  ah  ecclesia  fuerlt  approhatum.  It  also  declares 
that  there  can  be  attributed  to  laymen  no  faculty  over 
churches  and  ecclesiastical  persons,  as  to  whom  laymen  must 
have  the  necessity  of  obeying,  not  the  authority  of  com- 
manding :  quod  lalcis  {etlam  religiosis)  super  eccleslis  et 
personis  eccleslastlcis  nulla  sit  attrlhuta  facultas  :  quos 
ohsequendi  manet  necessitas,  non  auctoritas  imperandi. 

A  still  more  ancient  canon  is  Decret.  par.  1.  dist.  10.  c.  ^., 
which  prescribes  that  (temporal)  constitutions  contrary  to 


128  HISTORICAL   COMMENTARY. 

tlie  canons,  and  tlie  decrees  of  the  Roman  praesules,  or  to 
good  morals,  are  of  no  moment :  const itutiones  contra  can.- 
ones^  et  deer  eta  praesulum  Romanorum^  vel  honos  mores  ^ 
nullius  sunt  momentl. 

Decret.  par.  1.  dist.  10.  c.  1.  declares  that  the  law 
of  the  emperors  is  not  above  the  law  of  God,  but  under 
it.  Ecclesiastical  rights  can  not  be  dissolved  by  imperial 
judgment :  Lex  imperatorum  non  est  supra  legem  Dei.,  sed 
suhtus.  Imperlalijudicio  non  possunt  ecclesiastica  jura 
dissolm. 

The  following  points  will  be  found  in  the  2d  and  3d  titles 
of  the  Institutes  of  Lancelot,  sometimes  printed  with  the 
Corpus  Juris  Canonici.  A  constitution  is  written  law :  con- 
stitutio  est  lex  script  a.  Some  constitutions  are  civil,  others 
ecclesiastical.  The  former  are  enactments  made  by  the  civil 
authorities  mentioned,  the  latter  are  canons  made  by  the 
ecclesiastical  authorities  mentioned.  Civil  constitutions  are 
worthy  of  all  reverence,  if  they  be  not  contrary  to  evangel- 
ical and  canonical  decrees :  si  evangeUcis  atque  canonicis 
decretis  non  sint  contrariae.,  sunt  omni  reverentia  dignae. 
Otherwise  they  are  of  no  moment,  a  rule  which  obtains  to 
such  a  degree,  that  even  if  any  thing  should  be  enacted  in 
them,  which  has  respect  to  the  advantage  of  churches,  it  is 
of  no  strength  unless  it  should  be  approved  by  the  church  : 
alioquin  nullius  sint  momenti^  quod  usque  adeo  ohtinet^ 
lit  etiamsi  quid  in  eis  statutum  fuerit^  quod  ecclesiarum 
respiciat  commodum.,  nullius  firmitatis  existat^  nisi  ah 
ecclesiafucrit  comprohatum. 

The  Canon  law  upon  the  relation  between  the  laws  of  the 
church  and  those  of  the  state  is  still  unchanged.  Upon  the 
death  of  the  German  emperor  and  king  of  Prussia,-  William 
I.,  a  carefully  written  obituary  appeared  in  the  London 
Times.  In  it,  the  statement  is  made  that  the  late  Pope  Pius 
IX.  declared  ' '  certain  Prussian  statutes  to  be  null  and  void. ' ' 
These  statutes  constituted  the  well-known  Prussian  legisla- 
tion relating  to  the  Roman  Catholic  church,  which  had  been 
made  during  the  late  king's  reign  and  which  gave  rise  to  so 
much  friction  between  his  government  and  the  Roman  curia.  ^ 

*  See  the  Loudou  Times  of  March  10th,  1888. 


HISTORICAL   COMMENTARY.  129 


No.  4. 


Of  a  case  determined  in  the  Court  of  the  Rota  Romana  in 
1638^  in  which  it  was  held  that  the  legislative  acts  of  two 
popes,  as  temporal  princes,  were  not  to  he  accounted  good 
against  a  third  party  because  they  were  decided  to  he 
prejudicial  to  his  well  acquired  right  under  a  contract. 

So  mucli  for  the  Canon  law  in  cases  of  partition  of  x)owers. 
Such  cases  were  concerned  with  conflicts  of  laws  emanating 
from  different  authorities.  They  do  not  include  all  the 
relations  of  the  Canon  law  to  the  subject.  A  different  class 
of  cases  will  now  be  considered. 

The  popes  were  temporal  princes  in  central  Italy.  As  such 
they  exercised  temporal  power  of  legislation  in  the  pontifical 
states.  The  law  of  such  legislation  is  intimately  related  to 
the  previously  mentioned  doctrine  of  rescripts  in  Justinian's 
time. 

/  In  a  case  decided  in  1638,  the  Court  of  the  Rota  Horn  ana 
held  that  certain  legislative  acts  of  two  popes  as  princes, 
expressly  made  in  the  plenitude  of  power,  were  not  to  he 
accounted  good  against  a  third  i)arty  because  they  impaired 
or  prejudiced  his  well-acquired  right  under  a  contract  with 
the  government  of  Bologna.)  This  case  will  now  be  rehearsed. 
The  account  is  translated  and  abridged  from  the  D£cisiones 
Recentiores  of  the  Rota,  part  8,  decision  4. 

In  1466,  the  Cardinal  Legate  at  Bologna  with  the  consent 
and  will  of  the  members  of  the  government  of  Bologna 
granted  to  Bartholomew  Ghisilardi,  the  elder,  and  Ixis  heirs 
and  successors  the  faculty  of  building  a  mill  beyond  the 
walls  of  the  city.  All  other  mills  within  one  mile  were  pro- 
hibited and  all  inhabitants  were  to  be  free  to  have  com 
ground  at  the  new  mill.  The  grant  was  made  because  the 
grantee  had  offered,  in  consideration  of  it^  to  buy  land  and 
build  a  needed  mill.  After  the  mill  had  been  constructed, 
Sixtus  IV,  after  diligent  examination,  confii-med  the  grant 
and  motuproprio  granted  it  anew,  in  1473.  Bartholomew  and 
his  heirs  and  successors  continued  in  quiet  possession  of  the 
9  C. 


130  HISTORICAL   COMMENTARY. 

mill  and  the  rights  and  business  belonging  to  it  until  1520.  In 
that  year  the  government  of  Bologna  made  a  statute  provid- 
ing that  the  bakers  of  the  city  should  not  be  permitted  to 
have  their  corn  ground  outside  of  its  walls.  This  statute 
vras  confirmed  by  Leo  X.,  proceeding  on  his  own  motion, 
from  certain  knowledge  and  of  plenitude  of  power,  with 
derogation  to  all  and  all  kinds  of  privileges  by  whomsoever 
granted.  The  prohibition  of  the  statute  so  confirmed  was 
one  gravely  injuring  the  business  of  the  mill.  In  conse- 
quence whereof,  a  suit  was  brought  by  Anthony  Ghisilardi, 
nephew  of  the  deceased  grantee,  super  invaliditatem  ejusdern 
statuti.  Pending  this  suit,  the  government  of  Bologna 
sought  and  obtained  another  and  a  similar  confirmation  of 
its  statute  from  Clement  VII.  In  its  supplication  or  request 
therefor,  no  mention  of  any  pending  suit  was  made. 

The  auditor,  or  judge  who  heard  the  suit,  stated  a  duhi- 
tatur  to  the  whole  court  as  to  whether  the  letters  j)atent  of 
Leo  X.  and  Clement  YII.  were  to  be  accounted  good  against 
the  Ghisilardi  and  it  was  answered  that  both  were  not  to  be 
accounted  good  against  them  :  DuMtavl,  an  liierae  Leonls 
X.  et  dementis  YII.  suffrageniur  contra  DD.  de  Ghisl- 
lardls^  et  eas  non  suffragarifuit  responsuvi. 

It  should  be  recollected  that  Bologna  was  then  one  of  the 
most  important  of  the  pontifical  states,  and  possessed  a  leg- 
islative power  of  making  statutes  subject  to  the  legislative 
confirmation  of  the  pope  as  supreme  temporal  prince.  Such 
confirmations,  like  the  English  king' s  approval  of  American 
colonial  statutes,  were  acts  exercising  legislative  power. 
Each  confirmation  of  the  statute  in  question  was  thus  judi- 
cially held  not  to  be  good  as  an  exercise  of  legislative  power 
against  the  mill  owner. 

The  decision  first  considers  the  letters  patent  of  Leo  X. 
It  was  true  that  "they  emanated  from  the  pope  on  his 
"own  motion,  from  certain  knowledge  and  of  plenitude  of 
"l)ower,  with  derogation  to  all  and  whatsoever  privileges  to 
' '  whomsoever  granted,  and  with  other  most  ample  clauses  : 
quamvis  emanaverint  motu  proprio,  ex  certa  scientia,  ac 
de  plenitudine  potestatis  cum  derogatione  omnium^  et 
quorumcumque  prlolleglorum  quibuscumque  concessorum, 


HISTORICAL   COMMENTARY.  131 

et  cum  aliis  ampllssimis  clausulis.  They  contained,  how- 
ever, matter  to  the  prejudice  of  a  third  party,  the  Ghisilardi, 
who  had  a  well-acquired  right  or  Jus  quaes  itum  of  grinding 
corn  for  all  comers.  The  pope  was  ignorant  of  the  contract 
between  them  and  the  government  of  Bologna,  which  gave 
them  such  a  right.  The  presumption  must  therefore  be 
made  that  the  letters  patent  confirming  the  statute  had  em- 
anated at  the  suggestion  of  one  party  only  and  that  the 
pope  had  been  circumvented  under  cover  of  words,  for  he 
had  no  intention  of  prejudicing  a  third  party.  Two  doctors 
and  a  previous  decision  of  the  Rota  were  cited  as  authorities 
for  this  doctrine.  The  pontiff,  although  he  can  do  such  a 
thing,  was  never  held  to  wish  to  destroy  a  well-acquired  right : 
poiUifex  enim  licet  pos sit,  nunquam  censetur  velle  toller e 
jus  quaesitum.  For  this  Decretal,  lib.  1.  tit.  3.  cap.  3  and 
glosses  thereupon  were  cited.  The  pope  was  ignorant 
of  the  contract  between  Ghisilardi  and  the  government  of 
Bologna,  and  it  was  probable  that  if  he  had  known  of  it,  he 
would  not  have  made  the  derogation,  or  would  have  had 
greater  difficulty  in  making  it.  For  this  Dosition  several 
doctors  of  Canon  law  are  cited. 

Various  questions  suggested  by  the  texts  of  the  suppli- 
cation, the  letters  patent,  and  the  statute,  were  discussed 
and  decided  in  harmony  with  the  conclusion  that  the  letters 
patent  were  not  to  be  accounted  good  against  the  mill 
owners. 

The  litigation  had  been  a  long  one.  In  its  previous 
stages  the  plaintiff  had  obtained  a  mandate  for  the  manu- 
tention  of  his  possession  of  his  right  of  grinding  corn  for 
all  comers.  The  court  had  also  allowed  his  appeal  from 
the  statute,  on  the  ground  of  its  being  issued  in  his  preju- 
dice as  a  third  party,  because  it  prohibited  his  said  right. 
The  previous  settling  of  the  questions  relating  to  these  pro- 
ceedings made  the  court  more  easily  come  to  the  final  opinion. 

Every  thing  said  concerning  the  letters  patent  of  Leo  X. 
as  above,  was  held  to  apply  to  those  of  Clement  YII.  The 
latter,  indeed,  were  decided  to  be  subject  to  an  additional 
objection.  AVhen  they  were  obtained,  the  supplication  made 
no  mention  of  the  suit  pending  in  the  Rota.     They  were 


133  HISTORICAL   COMMENTARY. 

therefore  surreptitious.  Authorities  on  this  point,  includ- 
ing a  previous  decision  of  the  court,  were  cited. 

This  decision  of  the  Rota  thus  shows  that  the  legislative 
acts  of  two  popes,  as  temporal  princes,  confirming  a  statute 
of  a  pontifical  state,  were  by  that  court  not  accounted  good 
against  a  third  party,  because  his  well-acquired  right  was 
destroyed. 

Such  being  the  law  of  the  confirmations,  the  statute  itself 
was  invalid  against  the  injured  plaintiif.  His  suit  had 
been  introduced  in  the  Rota  super  imaliditatem  ejusdem 
statuti. 

Some  observations  upon  a  point  of  contact  between  the 
foregoing  case  and  that  of  Fletcher  v.  Peck  may  be  added. 

On  page  180,  paragraph  1,  of  6  Cranch,  C.  J.  Marshall,  in 
delivering  the  opinion  in  that  cause,  observes  : 

"If  the  principle  be  conceded,  that  an  act  of  the  supreme 
"  sovereign  power  might  be  declared  null  by  a  court,  in  con- 
"  sequence  of  the  means  which  procured  it,  still  would 
' '  there  he  much  difficulty  in  saying  to  what  extent  those 
'-^  means  must  he  applied  to  produce  this  effects 

In  saying  this,  the  Chief  Justice  had  particularly  in  mind 
those  cases  in  which  persons  soliciting  legislation  procure 
it  by  corrupting  legislators.  His  observation,  however,  is 
general  as  to  wrongful  means  of  procuring  legislation.  It 
covers  cases  in  which  legislators,  are  not  corrupted,  but  de- 
ceived by  soliciting  jDarties.  As  to  this  latter  class  of  cases, 
the  jurisprudence  of  the  Civilians  concerning  rescripts,  in 
its  fullest  and  latest  development,  affords,  perhaps,  a  means 
of  overcoming  the  difficulty,  as  far  as  private  legislation 
and  the  rights  of  third  persons  are  concerned. 

A  legislative  rescript  was  an  act  written  back  or  rescribed 
in  answer  to  a  supplication.  The  supplication  was  a  re- 
quest or  petition  for  legislative  relief.  It  was  the  matrix 
in  which  the  legislative  answer  of  the  lawgiver  was  formed. 
If  the  supplication  deceived  the  lawgiver  by  false  statements 
of  the  case  or  by  concealing  the  truth  thereof  and  the  sup- 
pliant thereby  procured  legislation,  the  rescript  was  of  no 
strength  in  prejudicing  the  well-acquired  rights  of  third 


HISTORICAL   COMMENTARY.  133 

parties.  It  was  a  judicial  question  whether  the  supplica- 
tion was  impeachable  or  not.  If  the  judge  decided  it  to  be 
so,  he  held  the  rescript  based  upon  it  to  be  of  no  strength 
against  the  well-acquired  rights  of  third  j)arties. 

To  appreciate  fully  this  law  of  legislation,  it  should  be 
remembered  that  the  majority  of  legislative  rescripts  should 
be  compared  with  private  acts  of  parliament  in  England  and 
not  with  public  general  statutes.  The  fact  that,  in  conti- 
nental Europe,  rescripts  were  often  called  letters  patent, 
should  not  divert  attention  from  private  acts  of  parliament. 

In  America,  where  written  constitutions  prevail,  it  may, 
perhaps,  be  possible  to  imitate  the  Civilians  as  far  as  pri- 
vate legislation  is  concerned.  If  it  be  possible  to  do  so,  the 
written  constitution  of  a  state  might  contain  dispositions, 
of  which  the  following  is  an  imperfect  sketch.  Such  a  con- 
stitution might  provide  that  all  private  acts  of  legislation 
should  be  procured  on  petition  only;  that  the  petition 
should  tell  the  truth  and  the  whole  truth  of  the  case,  or  be 
legally  defective ;  that  no  legislation  should  affect  the 
rights  of  third  parties,  when  procured  by  a  petition  legally 
defective ;  that  the  courts  of  justice  should  be  competent 
to  decide  whether  a  questioned  petition  be  legally  sufficient 
or  defective  ;  and  that  they  should  hold  legislation  procured 
by  a  defective  petition  to  be  void  of  effect  ujpon  the  rights 
of  third  parties. 


134  HISTORICAL   COMMENTARY. 


CHAPTER  XIII. 


Of  tlie  Canon  la-w  in  Bngfland  and  tlie  relations  be- 
tween it  and  tlie  Hnsrlisli  Isi^w  before  tlie  Reforma- 
tion, in  so  far  as  tlie  present  subject  is  concerned. 


DIVISION  A. 


Of  tlie  Canon  law  in  Hng^land  before   tlie  Reforma- 
tion. 


DIVISION  B. 
Of  tbe  case  of  tlie  constitutions  of  Clarendon, 

DIVISION  C. 


Of  tbe  case  of  tbe  Kngflisli  statutes  beld  void  as 
ag^ainst  tbe  churcli  during:  tbe  suppression  of  tbe 
Xemplars  in  Bng^land. 


DIVISION  D. 

Of  tbe  Hng^lisli  la^w  before  tbe  Reformation  concern- 
ingf  temporal  legfislation  contrary  to  ecclesiastical 
rig^lit  and  liberty. 

Of  tbe  case  of  tbe  Prior  of  Castlaker  v.  tbe  Oean  of 
St.  Stepbens  in  tbe  Year  Book  of  21  Henry  VII. 

DIVISION  E. 

Kurtber  reflections  suggfcsted  by  the  case  of  tbe  Prior 
of  Castlaker  v,  tbe  Dean  of  St.  Stepbens. 


HISTORICAL   COMMENTARY.  135 

DIVISION  F. 


Further  consideration  of  the  connection  bet^ween 
tlie  Canon  law^  and  tlie  Hng^lisli  la^w.  Of  tlie  case  in 
Fit^tierbert's  Abridgement,  Annuity  41,  or  Rous  v, 
an  Abboto 


DIVISION  G 

Of  tbe  Reformation  and  tbe  restrictions  -wliicb  it  re- 
moTed  from  tbe  po^ver  of  parliament. 


Chapter  XIII.  wiU  be  devoted  to  a  special  consideration 
of  the  Canon  law  in  connection  with  England  and  the 
English  law.  During  the  middle  ages,  the  Canon  law  was 
one  general  to  the  countries  of  Europe  not  included  within 
the  Greek  Empire.  Its  actual  operation,  however,  varied 
in  the  respective  countries.  Its  operation  in  England  was 
especially  affected  by  local  circumstances. 

DIVISION  A. 

Of  tbe  Canon  lai^in  Hngfland  before  tbe  Reformation. 

The  principles  of  the  Canon  law  and  those  of  the  Civil 
law  were  constant  companions.  In  England,  fortunately 
for  all  communities  now  speaking  the  English  tongue,  the 
Common  law  stoutly  excluded  the  Civil  law.  Thus  in 
England  there  was  a  special  dualism  between  the  law  of  the 
church,  or  spiritual  law,  and  the  law  of  the  land,  or  Common 
law.*  The  barons'  famous  '^nolumus  leges  Angliae 
''''mutare^^  was  uttered  against  a  rule,  which  was  sanctioned 

*  Qf.  Year  Book,  10  Henry  VIL,  pp.  9,  10,  No.  22  ;  p.  17,  No.  17  ;  1  i  Jlciiiy 
VII.,  p.  18  ;  pp.  22,  23,  24.  ^y-^.^..,^^ 


136  HISTORICAL   COMMEISTTARY. 

by  both  the  Civil  law  and  the  Canon  law,  and  urged  as  such 
by  the  bishops.  This  was  the  rule  of  legitimatio  per  sub- 
sequens  matrlmonium.'^ 

It  is  consequently  necessary  to  ascertain  how  the  Canonical 
doctrine  concerning  temporal  laws  and  statutes  was-  regarded 
in  England  before  the  Reformation,  both  by ^ the  church  and 
by  the  state. 

The  standard  work  of  Lindwood,  who  wrote  upon  the 
Canon  law  in  England  before  the  Eeformation,  affords  the 
means  of  ascertaining  the  views  of  the  English  Canonists  on 
the  subject. 

Lindwood  expressly  asserts  that  the  Canon  law  doctrine 
in  Decretal,  lib.  1.  tit.  2.  c.  10.  was  in  vigour  in  England. 
In  commenting  upon  an  act  "ordained  formerly  by  the 
' '  royal  consent  and  that  of  the  magnates  of  England,  as  if 
''for  ecclesiastical  right  and  liberty,"  he  says  that  "such 
"an  ordinance  even  though  in  favour  of  the  church,  when 
"  made  upon  the  mere  motion  of  the  king  and  the  two  tem- 
"poral  estates,  would  not  be  valid  (non  valeret)^  except  so 
"far  as  it  be  made  at  the  requisition  of  the  church,  or  after- 
"  wards  be  approved  by  the  church.  Decretal,  lib.  1.  tit. 
"^.  G.  10.^'  See  Lindwood' s  Provinciale,  Ed.  1679,  page 
263:  prout  consensu  regio^  et  magnatum  regni  Angliae 
tanquam  pro  jure  ecclesiasticaque  libertate  abolim  extitit 
ordiiiatum.  And  gloss  consensu  regio  on  the  same :  talis 
ordinatio  etiam  in  favor  em  ecclesiae  mero  motu  regio  et 
duorum  temporalium  facta  non  valeret,  nisi  quatenus  ad 
requisitionem  ecclesiae  fieret^  velpostea  ab  ecclesia  appro- 
baretur.  Extra,  de  consti.  c.  Ecclesia  Sanctae  Mariae  ;  ubi 
de  hoc. 

*  See  Bracton  and  his  Eelation  to  the  Roman  Law,  by  C.  Gueterbock,  trans- 
lated by  B.  Coxe,  pp.  59,  65,  127  et  seq. 


HISTORICAL    COMMENTARY.  137 

DIVISION  B. 
Of  tlie  case  of  tlie  constitutions  of  Clarendon. 

No.  1.  Of  the  constitutions  of  Clarendon  and  the  success- 
ful ecclesiastical  opposition  thereto. 

No.  2.  Practical  example  of  the  consequences  of  the 
nullity  of  the  constitutions  of  Clarendon.  Of  the  ecclesi- 
astical immunity  called  benefit  of  clergy. 

No.  3.  Of  tlie  resemblance  between  the  ecclesiastical  im- 
mu7iity  claimed  for  clerical  men  in  the  case  of  the  consti- 
tutions of  Clarendon  and  the  federal  immunity  claimed 
for  U.  S.  officials  in  the  case  of  the  state  of  Tennessee  v. 
Davis, 

That  the  Canon  law  doctrine  of  the  nullity  of  lay  stat- 
utes contrariant  to  ecclesiastical  right  and  the  liberty  of  the 
church  had  legal  vigour  in  England  as  well  as  on  the  conti- 
nent, is  very  fully  shown  by  two  cases  memorable  in  English 
history.  The  first  of  these  is  the  case  of  the  constitutions 
of  Clarendon,  and  the  second  that  of  the  statutes  conflicting 
with  the  proceedings  for  suppressing  the  Templars  and  an- 
nulled therein. 

No.   1. 

Of   the  constitutions  of  Clarendon  and  the  successful 
ecclesiastical  opposition  thereto. 

The  case  of  the  Constitutions  of  Clarendon  will  now  be 
considered.  These  acts  of  temporal  legislation  were  form- 
ally declared  null  or  void  by  the  Primate  Becket,  as  Arch- 
bishop of  Canterbury,  -pvoceeding  jurisdictional  iter  accord- 
ing to  the  Canon  law. 

The  history  of  Becket' s  quarrels  with  King  Henry  II.  is 
well  known.  Although  he  lost  his  life  in  consequence,  his 
ecclesiastical  action  against  the  legislation  of  the  constitu- 
tions of  Clarendon  was  in  the  end  successful. 

The  constitutions  are  called  by  Hale  "^  a  '*  considerable 

*  Hale  :  History,  5,  13G. 


138  niSTORICAL   COMMEN'J'ARY. 

"body  of  acts  of  parliament."  They  were  enacted  in  the 
year  1164  by  King  Henry  II.,  by  the  advice  of  his  council 
or  parliament  held  at  Clarendon.  They  consisted  of  sixteen 
articles  and  legislated  concerning  the  relations  between 
church  and  state  in  England."^  Five  of  these  articles  were 
especially  objected  to  by  Becket,  but  all  were  included  in 
his  denunciation. 

One  of  those  five  articles  authorized  the  punishment  of 
criminals,  who  were  clerical  men,  by  trial  in  the  secular 
courts.  Becket' s  words  are :  quod  clerici  trahantur  ad 
saecularia  judicia.\  This  provision  of  the  constitutions  is 
therefore  intimately  connected  with  the  history  of  the  bene- 
fit of  clergy.  Its  enactment  was  made  necessary  by  the  then 
existing  state  of  things.  Numerous  clerical  men,  who  had 
committed  murder,  had  never  been  called  to  account.  One 
clerical  murderer  in  Worcestershire  had  produced  general 
indignation  by  the  heinousness  of  his  crime,  but  Becket  re- 
fused to  consent  that  he  should  suffer  more  than  degrada- 
tion, and  insisted  that  a  degraded  ecclesiastic  could  not  be 
delivered  to  the  secular  power  for  further  punishment,  be- 
cause no  man  should  be  tried  twice  for  the  same  offence. 
His  doctrine  was  thus  not  only  most  rigorous,  but  most 
comprehensive,  for  it  applied  to  all  criminal  ecclesiastics. ;[ 

The  document  containing  Becket' s  action  is  his  letter  to 
his  suffragans,  dated  1166,  and  recorded  by  Hoveden  in  his 
Chronicle.  §  In  it,  he  speaks  officially  as  archbishop  and 
judicially  as  ecclesiastical  judge  upon  several  heads,  among 
Avhich  are  the  excommunications  of  seven  persons  named. 
It  should  here  be  remembered  that,  as  Archbishop  of  Can- 
terbury, Becket  was  the  legate  of  the  pope  in  England. 

Becket' s  denunciation  of  the  invalidity  of  the  constitutions 
of  Clarendon  could  hardly  be  plainer.  He  contemptuously 
terms  them  *'that  writing."  He  publicly  condemns  and 
quashes  the  writing  and  the  authority  thereof.  He  makes 
invalid  and  quashes  the  authority  of  the  writing  and  the 

*  Stubbs  :  History,  library  Ed.,  I.  526. 
t  Hoveden,  Rolls  edition,  I.  238. 
X  Hume,  A.  D.  1163,  paragraph  6. 


HISTORICAL   COMMENTAKY.  139 

writing  itself,  together  with  the  '  'depravities' '  contained  in  it : 

*'Scriptumillud ipsiusque  scripti  auctoritatem 

" publice  condemnavimus  et  cassavimus .  .    .    , 

^''Auctoritatem  ipsius  scripti,  ipsumque  scriptum,  cuvi 
^''pravitatihus  quae  in  eo  continentur,  in  irritum  duxirrius 
^'  et  cassavimus.'*^ 

This  j)roceeding  of  Becket'  s  was  not  an  isolated  ecclesias- 
tical act,  for  in  the  year  before,  1165,  Pope  Alexander  II. 
had  condemned  in  the  strongest  terms  the  then  most  im- 
portant of  the  sixteen  constitutions  and  anathematized  all 
who  observed  them.  The  eifect  of  the  pope's  act  had  been 
to  continue,  not  to  settle  the  conflict.  Neither  did  Becket' s 
act  at  first  do  more. 

With  various  vicissitudes,  unsettled  relations  between  the 
church  and  the  state  continued  until  December  29th,  1170, 
when  Becket  was  murdered  by  partisans  of  the  king  under 
circumstances,  which  made  the  latter  fear  that  the  pope 
might  hold  him  responsible  for  the  deed.  In  that  age  of 
superstition,  such  a  danger  was  most  formidable.  As  it  was, 
Becket' s  power  triumphed  in  his  death,  which  was  popularly 
held  to  be  that  of  a  martyr.  King  Henry  immediately  ap- 
plied to  Rome  for  absolution,  declaring  himself  free  from 
all  complicity  with  Becket' s  death.  On  learning  that  legates 
commissioned  to  absolve  him  had  arrived  in  Normandy,  he 
repaired  thither.  On  May  21st,  1172,  he  made  his  submis- 
sion to  them,  clearing  himself  by  oath  from  all  complicity 
as  aforesaid,  and  "renouncing  the  constitutions  of  Clar- 
' '  endon. ' '  "^  BeckeV  s  declaration  of  the  invalidity  of  those 
temporal  laws  was  thus  made  effective.  The  king's  loss 
was  the  pope' s  gain .  The  papal  power  henceforth  continued 
to  increase  in  England  until  it  reached  its  highest  point  in 
the  reign  of  Henry  III.,  tlie  grandson  of  Henry  II. f 

*Stubbs,  library  edition,  I.  53G. 

+  Gneist :    Verfassunff,  196.     Ashworth's  Translation,  I.  240. 


140  HISTORICAL   COMMENTARY. 


No.   2. 

Practical  example  of  the  consequences  of  the  nullity  of  the 
constitutions  of  Clarendon.  Of  the  eccles^iastical  im- 
munity termed  benefit  of  clergy. 

The  foregoing  statement  shows  that  there  was  a  legal  par- 
tition of  power  between  church  and  state,  the  execution  of 
which  the  former  could  secure  by  its  spiritual  weapons 
against  any  temporal  opposition.  The  arms  of  the  church 
were  then,  indeed,  as  capable  of  doing  execution  as  any 
arms  of  the  flesh.  What  is  now  called  Boycotting  aftbrds 
a  modern  object  lesson  of  the  earthly  power  of  excommuni- 
cation. To  such  earthly  evil  was  added  the  superstitious 
terror  connected  with  untold  ]3unishmentinthenext  world. 
Moreover,  this  partition  of  power  was  practical  as  well  as 
theoretical.  How  practical  it  was,  is  well  exemplified  in  the 
branch  of  criminal  law,  which  has  already  been  spoken  of 
and  which  may  be  further  adverted  to  in  elucidation  of  the 
case  of  the  constitutions  of  Clarendon. 

The  abusive  condition  of  things  as  to  ecclesiastics  guilty 
of  murder  and  other  crimes  against  the  state  continued  un- 
reformed.  The  church  continued  to  claim  their  exemption 
from  trial  in  the  king's  courts,  insisting  upon  their  being 
subject  only  to  the  jurisdiction  of  its  own  courts,  while  it 
was  either  really  unwilling  or  practically  unable  to  try  and 
punish  them  therein.  The  constitutions  of  Clarendon  had 
in  vain  striven  to  remedy  the  evil.  The  church  had  de- 
clared those  laws  void  because  of  defect  of  power  in  the  lay 
enactors  thereof  and  had  carried  its  point. 

The  benefit  of  clergy,  as  successfully  secured  by  Becket, 
was  an  immunity  of  ecclesiastics  from  the  execution  of 
justice  by  the  state  in  cases  of  murder  and  felony  according 
to  the  Common  law.  No  king  of  England  could  admit  the 
proposition  that  such  an  immunity  ought  to  exist,  unless  it 
were  true  that  all  clerical  criminals  ought  to  be  tried  only 
in  courts  that  either  could  not  or  would  not  punish  them. 
A  critic  of  the  period  might  have  said  of  such  a  proposition : 


HISTORICAL   COMMENTARY.  141 

*'  Were  the  object  to  give  felons  an  immunity  to  commit 
'^  crime,  and  to  provide  a  way  for  their  escape  from  punish- 
"ment,  it  seems  to  me  that  it  would  be  difficult  to  devise 
"any  mode  more  effectual  to  that  end  than  the  theory  em- 
"  bodied  in  that  proposition." 


No.  3. 

Of  the  resemhlance  between  tlie  ecclesiastical  immunity 
claimed  for  clerical  men  in  the  case  of  the  constitutions 
of  Clarendon  and  the  federal  immunity  claimed  for  U. 
S.  officials  in  the  case  of  the  state  of  Tennessee  v.  Davis. 

The  foregoing  medieval  example  of  an  exorbitant  exemp- 
tion from  jurisdiction  is  well  worth  studying  by  all  wishing 
to  understand  the  system  of  dual  government  by  church 
and  state,  which  was  the  fundamental  public  law  or  consti- 
tution of  Europe  before  the  Reformation. 

The  division  of  powers  into  spiritual  and  temporal  in  the 
states  of  medieval  Europe  and  the  division  of  powers  into 
federal  and  municipal  in  the  states  of  the  American  Union 
have  a  marked  resemblance.  A  system  of  dual  government 
marks  both.  In  England  before  the  RefoiTnation  every 
Englishman  owed  obedience  to  both  pope  and  king.  In 
every  state  of  the  union,  every  citizen  owes  obedience  to 
both  the  union  and  the  state.  The  resemblance  between  the 
two  divisions  of  powers  is  of  much  importance  for  the  pur- 
poses of  this  Essay  ;  and  no  specially  good  opportunity  for 
illustrating  it  should  be  neglected  in  this  examination  of  the 
Canon  law.  Such  an  opportunity  is  afforded  by  the  present 
discussion  of  the  benefit  of  clergy  in  Becket'  s  time.  The 
far-reaching  exemption  of  ecclesiastics  from  temporal  juris- 
diction, which  he  successfully  claimed,  deserves  attentive 
consideration  by  modern  Americans,  for  they  will  find  some- 
thing strangely  like  it  now  existing  within  the  United 
States. 

The  government  of  the  United  States  by  its  legislative 
and  judicial  acts  has  declared  that  its  executive  officials, 
who  may  have  committed  murder  and  other  crimes  against 


142  HISTORICAL   COMMENTARY. 

a  state  while  claiming  to  act  officially,  are  exempt  from  the 
jurisdiction  of  the  courts  of  the  several  states.  It  has  fur- 
ther insisted  that  the  trials  of  such  indicted  persons  must 
be  removed  from  the  state  courts  to  the  U.  S.  courts,  al- 
though it  is  and  ever  will  be  impossible  to  secure  therein 
the  trial,  conviction  and  punishment  of  U.  S.  officials,  who 
have  been  actually  guilty  of  crimes  against  the  rightful, 
valid  and  necessary  laws  of  the  states. 

This  observation  requires  a  reference  to  the  case  of  Ten- 
nessee i\  Davis,  in  10  Otto  257.  The  laws  of  Tennessee 
provide  for  the  trial  of  all  persons  accused  of  crimes  against 
the  state,  in  the  same  way  as  is  done  in  other  states  of  the 
Union.  The  relation  of  the  state  laws  to  any  plea  of  defence 
urged  as  a  federal  question  by  U.  S.  officials  is  the  same  in 
Tennessee  as  in  other  states.  In  the  suit  of  Tennessee  i\ 
Davis,  the  indicted  man  claimed  to  be  exempt  from  trial 
for  homicide  in  the  state  court,  because  he  was  a  U.  S.  offi- 
cial claiming  to  have  acted  officially.  The  Supreme  Court 
of  the  United  States  held  the  laws  of  Tennessee  to  be  void 
to  the  whole  extent  of  the  official' s  claim  of  immunity  from 
trial  in  the  state  courts  ;  just  as  the  Roman  church  of 
Becket's  time  held  the  laws  of  England  to  be  void  to  the 
whole  extent  of  the  clergy's  claim  of  immunity  from  trial 
in  the  king's  courts.  The  court  decided  that  the  suit  must 
be  removed  to,  and  tried  by,  the  U.  S.  Circuit  Court.  This 
was  done  in  terms  which  covered  the  case  of  the  indicted 
man  being  guilty  just  as  much  as  that  of  his  being  innocent. 

A  benefit  of  removal,  which  secured  an  immunity  strangely 
like  that  secured  by  Becket'  s  benefit  of  clergy,  was  thus  as- 
serted for  U.  S.  officials. 

Judge  Clifl:*ord,  in  his  dissenting  opinion  in  Tennessee  v. 
Davis,  regarded  the  contentions  of  the  opinion  of  the  court 
as  tantamount  to  asserting  the  proposition  that  a  state  in- 
dictment for  felony  can  be  removed  from  a  state  court  into 
a  U.  S.  circuit  court,  although  it  was  substantially  admit- 
ted that  a  prisoner  can  not  be  tried  there  until  Congress  shall 
enact  some  mode  of  procedure.  Such  a  proposition  he  re- 
gards as  most  erroneous  and  nearly  approaching  an  absurd- 
ity.    He  adds : 


HISTORICAL   COMMENTARY.  143 

"Were  the  object  to  give  felons  an  immunity  to  commit 
"crime,  and  to  provide  a  way  for  their  escape  from punish- 
"ment,  it  seems  to  me  that  it  would  be  difficult  to  devise 
"any  mode  more  effectual  to  that  end  than  the  theory  em- 
" bodied  in  that  proposition.'"^ 

Thus  the  conduct  of  the  Roman  church  in  the  twelfth 
century  and  that  of  the  U.  S.  government  in  the  nineteenth 
strongly  resemble  each  other ;  so  strongly,  indeed,  that 
Judge  Clifford's  language  may  be  applied  to  the  conduct 
of  both.  Both  endeavoured  to  secure  what  they  claimed  to 
be  their  own  rights  by  usurping  rights  which  they  knew 
belonged  to  other  jurisdictions.  Both  might  have  secured 
all  rightful  immunity  for  their  innocent  officials  without 
wrongfully  prottcting  the  guilty.  Both,  however,  in- 
sisted upon  usurping  immunity  for  their  officials  regardless 
of  guilt  or  innocence.  The  Roman  church  abused  its  sjDir- 
itual  power  to  the  extent  of  gravely  violating  the  rights  of 
the  English  state.  The  U.  S.  government  abused  its  fed- 
eral powers  to  the  extent  of  gravely  violating  the  rights  of 
the  states  of  the  Union. 


DIVISION  C. 

Of  ttie  case  of  tlie  Hns:listi  statutes  lield  void  as 
ag^ainst  tlie  cliurcti  during:  tlie  suppression  of  tlie 
Xemplars  in  Bng^land. 

The  second  of  the  above-mentioned  ca^es,  in  which  the 
Canon  law  doctrine  upon  temporal  statutes  was  received  in 
England,  is  that  of  the  statutes  held  void  as  against  the 
church  during  the  suppression  of  the  Templars.  This  was 
done  in  the  reign  of  Edward  II.  and  pontificate  of  Clement 
V.  It  is  difficult  to  imagine  a  greater  case  in  the  law  of 
laws.     Magna  Charta  itself  was  invalidated. 

The  suppression  of  the  Templars  in  Europe  has  recently 
been  investigated  by  an  historian  whose  learning  and  au- 
thority are  of  the  highest  rank.  What  Mr.  Lea  has  written 
upon  it  will  be  used  Avithout  stint  for  the  purposes  of  this 


*  10  otto,  page  297,  lines  8  et  seq. 


144  HISTORICAL   COMMENTARY. 

Essay.  It  is  discussed  in  the  fifth,  chapter  of  the  third  vol- 
ume of  his  History  of  the  Inquisition  in  the  Middle  Ages. 
Pages  298  et  seq.  relate  especially  to  the  suppression  of 
the  order  in  England. 

The  bull  Pastoralls  praeeminentiae  was  made  by  Pope 
Clement  Y . ,  on  November  22d,  1807.'^*  It  recites  what  Philip 
the  Fair,  king  of  France,  had  done,  at  the  requisition  of 
the  papal  inquisition  for  France,  in  order  to  bring  the  Temp- 
lars in  that  country  to  the  judgment  of  the  church,  and 
orders  all  other  sovereigns  to  do  likewise  in  their  respective 
dominions.  The  bull  was  received  the  following  month  by 
Edward  II,  king  of  England.  Although  the  commands  of 
the  bull  conliicted  with  the  king's  previously  expressed 
opinions,  he  proceeded  at  once  to  obey  them.  On  Decem- 
ber 15th,  royal  orders  were  sent  to  all  the  sheriffs  in  Eng- 
land, giving  instruction  to  capture  all  Templars  on  January 
IStli,  1308,  t  together  with  directions  for  the  sequestration 
and  disposition  of  their  property.  These  were  followed  by 
corresponding  commands  for  Ireland,  Scotland  and  Wales. 
The  seizure  was  made  accordingly.  The  Templars  were 
kept  in  honourable  durance,  and  not  in  prison,  awaiting  the 
action  of  the  pope.  Delays  then  occurred  until  the  arrival 
of  the  papal  inquisitors  in  England  in  September,  1309. 
Further  instructions  were  then  sent  out  to  arrest  all  Temp- 
lars not  previously  seized  and  to  produce  them  at  London, 
Lincoln  or  York.  It  apparently  was  not  easy  to  obtain  of- 
ficial obedience  to  these  orders.  In  the  following  Decem- 
ber it  was  necesstlry  to  instruct  all  the  sheriffs  to  seize  the 
Templars  wandering  abroad  in  secular  habits,  and  the  sheriff 
of  York  was  at  later  dates  twice  taken  to  task  for  permitting 
those  in  his  custody  to  be  at  large. 

At  length  on  October  20th,  1309,  the  ]3apal  inquisitors 
together  with  the  Bishop  of  London  sat  judicially  in  the 
bishop's  palace  to  examine  the  Templars  collected  in  Lon- 
don. Interrogated  singly  on  all  the  numerous  articles  of 
accusation,  they  all  asserted  the  innocence  of  their  order. 
Most  of  the  outside  witnesses  declared  their  belief  to  the 

*  Lea,  III.  278. 
t  Lea,  III.  298. 


HISTORICAL   COMMENTARY.  145 

same  effect,  although  some  gave  expression  to  the  vague 
popular  rumours  and  scandalous  stories  suggested  by  the 
secrecy  of  the  proceedings  within  the  order.  The  inquisito- 
rial process  seemed  a  sterile  one  in  England.  '*  The  inquis- 
' '  itors  were  nonplussed.  They  had  come  to  a  country  whose 
' '  laws  did  not  recognize  the  use  of  torture,  and  without  it 
' '  they  were  powerless  to  accomplish  the  work  for  which 
"  they  had  been  sent."'^  They  finally  applied  to  the  king, 
and  on  December  15th  obtained  from  him  an  order  to  the  cus- 
todians of  the  prisoners  to  do  with  the  bodies  of  the  Temp- 
lars what  they  pleased  "in  accordance  with  ecclesiastical 
"law,"  that  term  meaning  the  use  of  torture.  Difficulties 
must  have  been  interposed  by  those  receiving  the  orders, 
for  a  second  command  was  given  on  March  1st,  1310,  and 
repeated  on  March  8th,  with  instructions  to  report  the  cause, 
if  the  first  had  not  been  obeyed.  Little  evidence  of  any  im- 
portance was  however  obtained  until  May  24tli,  when  three 
recaj^tured  fugitive  Templars  made  confessions  such  as  were 
desired  and  which,  it  is  easy  to  guess,  were  made  under  tort- 
ure. Pope  Clement  "grew  impatient  at  this  lack  of  result. 
' '  On  August  6th,  he  wrote  to  Edioard  that  it  was  reported 
''that  he  had  prohibited  the  use  of  torture  as  contrary  to 
'''the  laws  of  the  kingdom  and  that  tlte  inquisitors  were  thus 
' '  powerless  to  extract  confession  s.  No  law  or  usage^  hesaid^ 
''  couldhe  permitted  to  onerrulethe  canons  provided  for  such 
'' cases ^  and  Edward' s  counsellors  and  officials  who  were 
''guilty  of  thus  impeding  the  inquisition  were  liable  to 
"the  penalties  provided  for  that  serious  offence,  while  the 
"  king  himself  was  warned  to  consider  whether  his  posi- 
"tion  comported  with  his  honour  and  safety,  and  was 
"offered  remission  of  his  sins  if  he  would  withdraw  from 
"  it."t  Similar  letters  were  at  the  same  time  sent  to  all  the 
English  bishops,  who  were  taken  to  task  for  not  having  al- 
ready removed  the  impediment,  as  their  ecclesiastical  duty 
required  them. :j:  "Under  this  impulsion  Edward,  August 
"  26,  again  ordered  that  the  bishops  and  inquisitors  should 

*  Lea,  III.  299. 
t  Lea,  III.  300. 
%  Lea,  III.  :]00. 

10  0. 


146  HISTORICAL   COMMENTAKY. 

''  be  allowed  to  employ  ecclesiastical  law,  and  this' was  re- 
^'peated  October  6 and  23,  November  22,  and  April  28,  1311, 
"in  the  last  instances  the  word  torture  being  used,  and  in 
''  all  of  them  the  king  being  careful  to  explain  what  he  does 
"  is  through  reverence  for  the  Holy  See.  August  18,  1311, 
"similar  instructions  were  sent  to  the  sheriff  of  York. 
' '  Thus  for  once  the  papal  inquisition  found  a  foothold  in 
"England,  but  apparently  its  methods  were  too  repugnant 
"to  the  spirit  of  the  nation  to  be  rewarded  with  complete 
"success.'"^ 

There  can  be  no  doubt  that  the  torturing  of  the  Templars 
by  the  king' s  officials  at  his  command  on  ecclesiastical  re- 
quisition was  then  contrary  to  the  law  of  the  land  of  Eng- 
land. It  was  also  certainly  a  inolation  of  Magna  Charta^ 
which  was  an  act  of  parliament  that  had  been  re-enacted 
over  and  over  again.  The  pope  writing  officially  to  the 
king  as  aforesaid  declared  the  binding  and  the  ecclesiastical 
law  to  be  that  the  temporal  law  and  statutes  of  England 
forbidding  the  use  of  torture  could  not  overrule  the  canons 
of  the  church  to  the  contrary.  That  is  to  say,  within  the 
limitations  of  ecclesiastical  right,  the  law  of  the  church  was 
binding  on  the  king  and  his  subjects  and  the  law  of  the  land 
was  not  binding.  The  temporal  laws  preventing  trial  by 
torture,  including  Magna  Charta,  were  void  in  so  far  as  con- 
trary to  the  canons  and  because  so  contrary. 

What  the  pope  wrote  to  the  king  he  repeated  in  official 
letters  to  the  bishops.  Like  the  king  and  other  English- 
men concerned  in  the  torture  of  the  Templars,  they  were 
deficient  in  alacrity.  The  English  bishops,  proceeding  as 
ecclesiastical  judges,  were  unaccustomed  to  the  practice  of 
causing  men  to  be  tortured.  Their  courts  were  called  courts 
Christian. 

Thus  the  Templars'  case  was  a  clear  case  of  conflict  be- 
tween the  law  of  the  land  of  England  and  the  Canon  law  of 
the  Roman  church,  which  was  settled  upon  the  basis  that 
the  former  was  void  in  so  far  as  contrary  to  the  latter  and 
because  so  contrary. 


*  Lea,  III.  300,  SOL 


HISTORICAL   COMMENTARY.  147 

To  this,  law  of  laws  the  king  of  England  submitted  and 
executed  the  Canon  law.  Thereby  he  refused  to  execute 
the  39th  article  of  Magna  Charta,  which  guarantees  every 
freeman  a  trial  according  to  the  law  of  the  land.  He  also 
refused  to  execute  the  various  acts  of  parliament  which  re- 
enacted  Magna  Charta.  The  tortured  Templars  did  not  re- 
ceive a  trial  according  to  the  law  of  the  land  but  a  trial  ac- 
cording to  the  law  of  the  church. 


*& 


DIVISION  D. 

Of  tlie  Kng^lisli  law  before  tlie  Reformation  concern- 
ing: temporal  legislation  contrary  to  ecclesiastical 
rig^lit  and  liberty. 

Of  tbe  case  of  tlie  Prior  of  Castlaker  v,  tlie  Dean  of  St. 
Stephens  in  the  Year  Book  of  21  Henry  VII. 

In  division  A.  of  this  chapter,  it  has  been  shown,  on  the 
authority  of  Lindwood,  that  the  English  Canonists  held  that 
the  Canon  law  rule  concerning  temporal  statutes  was  in 
vigour  in  Roman  Catholic  England.  Lindwood  held  that 
an  act  ordained  by  the  temporal  power,  affecting  ecclesias- 
tical right  and  liberty,  would  not  be  valid  {non  valeret),  ex- 
cept in  so  far  as  made  upon  the  previous  requisition,  or  con- 
firmed by  the  subsequent  approbation,  of  the  church.  Im- 
portant as  such  legal  doctrine  was,  it  was  still  more  import- 
ant that  its  application  in  actual  practice  can  be  proved  to 
have  been  made  by  men  who  were  not  doctors  of  Canon  law 
but  Common  law  jurists.  Language  applying  such  doctrine 
is  reported  as  used  at  the  bar  and  on  the  bench  of  the  Court 
of  Common  Pleas,  the  very  home  of  the  learning  of  the 
Common  law.  This  will  be  seen  from  a  case  in  that  court, 
reported  in  the  Year  Book  of  21  Henry  VII. ,  pp.  1  to  o. 

In  it  a  question  arose  whether  a  certain  act  of  parliament, 
being  an  act  of  the  temporal  power,  could  make  the  king, 
being  a  temporal  man,  the  parson  of  a  certain  church.  If 
the  act  did  so,  it  gave  spiritual  jurisdiction  to  a  temporal 
man  without  the  consent  of  the  spiritual  power. 

Tlie  correct  answer  to  this  question  is  shown  by  the  report 
to  be  in  the  negative.      The  discussion  of  the  question. 


148  HISTORICAL   COMMENTARY. 

furthermore,  shows  that,  by  the  then  English  law,  parlia- 
ment had  not  unlimited  power  in  ecclesiastical  matters. 
Judge  Blackstone  could  say  so  in  a  later  time,  but  English 
judges  could  not  say  so  before  the  Reformation. 

It  may  seem  strange  to  many  of  Blackstone' s  readers  that 
parliamentary  power  should  be  spoken  of  as  limited ;  but 
it  would  have  seemed  stranger  to  Englishmen  before  the 
Reformation  for  any  one  to  say  that  the  temporal  parliament 
could  legislate  with  unlimited  power  in  ecclesiastical  mat- 
ters regardless  of  the  pope's  wishes  and  authority.  It  re- 
quired the  Reformation,  that  is  to  say,  an  ecclesiastical  re- 
volution, for  parliament  to  obtain  its  modern  plenitude  of 
power  in  matters  ecclesiastical. 

The  case  referred  to  was  this.  The  Prior  of  Castlaker 
brought  an  action  of  annuity  against  the  Dean  of  St. 
Stephens. "^^  In  making  his  title,  the  plaintiff  claimed  that 
all  his  predecessors  had  been  seized  of  the  annuity  by  the 
hands  of  a  certain  A.,  Parsoii  of  the  Church  of  N.  and  all 
his  predecessors  de  temps  dont  memory  ne  court,  and  that 
the  annuity  was  in  arrear.  The  defendant  claimed  that  the 
parsonage  was  and  had  been  appropriated  to  the  Priors  of 
B.  devant  temps  de  memory.  Their  priory  was  a  cell  of  the 
Abbey  of  Caen  in  Normandy.  In  time  of  war  King  Edw^ard 
III.  seized  all  lands  which  were  temporalties  of  Alien  Priors. 
This  was  the  state  of  things  until  2  Henry  Y.,  in  which 
year  it  was  ordained  by  authority  of  parliament  that  all  the 
lands  so  seized  by  the  king  should  remain  in  sa  possession 
a  luy  et  ses  successors  forever,  f  Edward  IV.  granted  the 
parsonage  to  the  Beans  of  St.  Stephens,  by  letters  j)atent, 
which  were  produced  by  the  defendant,  who  claimed  that 
it  was  thereby  given  as  it  existed  in  the  king's  hands  and 
so  discharged  of  the  annuity. 

One  of  the  questions  involved  in  the  case  was  this : 
Whether  or  not  the  king  could  be  made  parson  by  the  act 
of  parliament,  {si  le  Boy  puit  estre  parson  per  Vactc  de 

*  The  spelling  Castlaker  is  that  of  the  Year  Book.  Viner  spells  the  word 
Castle-acre  :  See  his  head  of  Statutes,  D.  5. 

t  For  this  act  see  Rolls  of  Parliament,  vol.  4,  page  22  (2  Henry  V.).  The 
enrolled  words  are  :  demurrer  en  voz  viains^  <i  vou.%  et  a  voz  hcira  pur  ioutz  jours. 


HISTORICAL   COMMENTARY.  149 

Parlement).  If  the  king  had  been  made  Parson  of  the 
Church  of  N.  by  the  Alien  Priors  act  of  2  Henry  V.,  the 
plaintiff  could  not  recover,  because  the  annuity  was  deter- 
mined for  reasons  of  prerogative.  But  if  the  king  had  not 
been  parson,  then  no  reason  of  prerogative  existed  for  the 
determining  of  the  annuity. 

The  following  passages  relating  to  the  question  whether 
the  king  had  been  parson  or  not,  are  translated  from  the  re- 
j)ort.  The  proceedings  reported  are  those  of  two  separate 
days.     The  case  was  considered  at  much  length. 

It  was  said  by  Palmes  at  the  bar:  ''It  seems  that  the 
* '  king  can  not  be  called  parson  by  the  act  of  parliament : 
**forno  temporal  act  can  make  it  that  temporal  act  can 
*'make  temporal  man  have  spiritual  jurisdiction.  For  if  it 
"was  ordained  by  act,  etc.,  that  such  a  one  should  not 
*' tender  tithes  to  his  curate,  the  act  would  he  void  {le  AcV 
^'  sera  void)^  for  concerning  such  thing  as  touches  merely 
*'  the  spiritualty,  sucJt  temporal  act  can  make  no  ordinance 
**  {tiel  temporal  ^acte  ne  puit  /aire  ascun  ordinance) :  the 
''law  is  the  same  {meme  la  Ley)  if  it  was  enacted  that  one 
"parson  should  have  the  tithes  of  another.  So  by  this  act, 
"  which  is  merely  one  of  a  temporal  court,  the  king  can  not 
"be  made  to  have  any  spiritual  jurisdiction." 

Coningsby,  in  argument  on  the  other  side,  maintained 
that  the  king  could  be  parson  and  asserted  as  a  fact  that 
"the  king  had  divers  benefices  in  Wales  which  are  contin- 
"ually  in  his  hand." 

Kingsmill,  Justice,  said  :  "The  act  of  parliament  can  not 
"  make  the  king  to  be  parson  :  for  we  can  not  by  our  law* 
"make  any  temporal  man  to  have  spiritual  jurisdiction,  for 
"no  one  can  do  this  excex)t  the  SujDreme  Head  [of  the 
"Church]." 

Fisher,  Justice,  said:  "The  king  can  not  be  parson  by 
"this  act  of  parliament,  neither  can  any  temporal  man  be 
"called  parson  by  this  act." 

*  "  Our  law  "  {nostre  Ley)  means  the  temporal  law,  the  Common  law,  the 
law  of  the  land,  in  opposition  to  the  spiritual  law,  the  Canon  law,  the  law  of 
the  holy  church.  The  expression  was  a  usual  one.  Cf.  Year  Book  of  12  Henry 
VII.,  p.  23. 


150  mSTORICAL   COMMENTARY. 

On  the  other  hand  Vavasor,  Justice,  observed :  '  *  Whether 
''the  king  can  be  parson  or  not:  and  it  seems  to  me 
"that  he  can.  And  as  to  this  I  shall  first  put  to  you 
"several  precedents.  I  know  of  divers  lords  who  have  par- 
"  sonages  in  their  own  use  (and  he  gave  their  names  and 
"places),  so  that  it  is  not  impertinent  {impertinent)  that  the 
"king  should  be  called  parson  ;  and  especially  by  the  act 
"  of  jmrliament.  For  in  the  time  of  king  Richard  II.,  there 
"was  division  for  the  po]3e  in  time  of  vacation,  as  it  was 
"  afterward,  and  because  it  was  certified  to  the  king  and  his 
"council,  that  certain  priests  in  England  had  offended  in 
"divers  points,  they  were  deprived  of  their  benefices  by  act 
' '  of  parliament :  so  you  can  see  how  spiritual  things  were 
"taken  by  act  of  parliament  from  them  who  were  spiritual 
"  men.  Those  things  were,  indeed,  mixed  with  the  tempor- 
"alty :  for  if  they  were  purely  spiritual,  perhaps  it  would 
"be  otherwise." 

The  proceedings  were  terminated  by  Chief  Justice 
Fro  wick' s  opinion  in  which  he  said :  '  'As  to  the  other  matter, 
"whether  the  king  can  be  parson  by  act  of  jmrliament ;  as 
"  I  understand,  it  is  not  a  great  matter  to  argue  :  for  I  have 
"never  seen  that  any  temporal  man  can  be  parson  without 
"the  agreement  of  the  Supreme  Head  [of  the  Church]. 
"  And  in  all  those  cases  which  have  been  put,  namely,  those 
' '  of  the  benefices  in  Wales,  and  the  benefices  which  laymen 
' '  have  in  their  own  use,  I  have  seen  to  the  matter  ;  the  king 
"  had  them  by  the  assent  and  agreement  of  the  Supreme 
"Head  [of  the  Church] ;  and  so  a  temporal  act  can  not^ 
^''Without  the  assent  of  the  Supreme  Head  [of  the  Church^ 
^^mdke  the  king  parson  {issint  un  acte  temporel  sans  le 
''  as  sent  e  deV  Supreme  Teste  ne  puit  fa  ire  le  Moy  parson)^ 

From  the  foregoing  extracts,  it  is  maintained  that  the 
Canon  law  concerning  the  invalidity  of  temporal  statutes  af- 
fecting ecclesiastical  right  and  liberty  was  received  by  the 
Common  law  and  in  the  Common  law  courts  to  an  extent 
which  is  of  great  legal  moment.  It  is  clear  that  before  the 
Reformation  parliament  had  not  legally  an  unlimited  power 
in  ecclesiastical  matters. 

An  act  of  parliament  could  not  legislate  in  purely  spiritual 


HISTORICAL   COMMENTARY.  ICl 

matters  without  tlie  poise's  consent.  His  consent  was  abso- 
lutely necessary.  Vavasor,  the  dissenting  judge,  claimed 
validity  for  acts  of  i:)arliament  only  in  cases  of  mixed  things, 
or  those  in  which  the  spiritualty  was  mixed  with  the  tem- 
poralty.  He  reserved  his  o^jinion  as  to  things  i)urely 
spiritual. 

It  will  be  observed  that  the  dissenting  judge's  opinion  is 
answered  by  the  chief  justice.  The  former  refers  to  certain 
cases  in  which  acts  of  temporal  power  were  valid  although 
affecting  the  spiritualty  and  cites  them  as  authority  for  his 
opinion.  This  is  controverted  by  the  chief  justice,  who 
holds  that  those  cases  are  authority  for  the  counter-opinion. 
The  said  acts  of  temporal  power  were  valid  because  the  pope 
gave  his  consent  thereto. 

Parliament  could  not  therefore  actually  make  statutes  ex- 
tending to  two  classes  of  matters.  The  first  class  included  all 
purely  spiritual  matters.  The  second  class  included  some  but 
not  all  spiritual  matters  which  were  mixed  with  the  tempor- 
ary. Without  the  pope's  consent,  acts  of  parliament  ex- 
tending thereto  had  no  legislative  vigour.  So  far  the  tem- 
2:)oral  law  in  England  received  the  Canon  law  concerning  the 
nullity  of  temporal  statutes  contrary  to  ecclesiastical  right 
and  liberty. 

It  will  also  be  observed  that  the  report  of  the  argument  of 
Serjeant  Palmes  states  that  he  applied  the  adjective  void  to 
an  act  of  parliament  which  legislated  concerning  a  matter 
merely  affecting  the  spiritualty. 

Lastly,  it  may  be  added  that  when  the  English  acknowl- 
edged the  supremacy  of  the  pope  as  head  of  the  church,  the 
notion  that  parliament  had  unlimited  power  in  ecclesiastical 
matters  was  an  absurdity  in  or  out  of  any  court.  Black- 
stone' s  doctrine  of  the  absolute  and  uncontrolled  power  of 
parliament  in  ecclesiastical  matters  could  only  have  origin- 
ated after  the  Reformation.  At  the  same  time,  it  should  be 
pointed  out  that  the  case  of  the  prior  of  Castlaker  v.  the 
Bean  of  St.  Stephens  was  a  very  exceptional  one,  as  will  be 
enlarged  upon  in  the  next  division  of  this  chapter. 


162  HISTORICAL   COMMENTARY. 


DIVISION  E. 

Further  reflections  suggested  by  the  case  of  the  Prior 
of  Castlaker  v,  the  Dean  of  St.  Stephens. 

Such  a  case  as  this  was  exceptional  in  the  courts  of  Com- 
mon law.  The  judges  of  those  courts  were  not  persons  to 
whom  the  church  looked  especially  for  the  vindication  of 
ecclesiastical  rights.  On  the  contrary,  English  judicial 
history^  shows  that  the  church  would  naturally  expect  them 
often  to  be  unwilling  to  give  it  the  measure  of  ecclesiastical 
right  claimed  by  the  Canon  law. 

The  natural  play  of  the  spiritual  and  temporal  powers 
was  normally  one  of  negotiation  between  the  authorities  of 
the  church  and  those  of  the  state.  Whenever  parliament 
met,  the  lords  spiritual  and  the  lords  temporal  could  ne- 
gotiate in  the  same  chamber,  while  the  commons  were  as- 
sembled near  by  in  another,  ready  to  unite  in  action  with 
the  other  temporal  estate. 

From  the  time  when  a  parliament  of  three  estates  first 
took  part  in  legislation,  the  bishops  and  other  prelates 
headed  by  the  primate  (who  was  the  pope's  legate  in 
England)  were  real  representatives  of  the  church.  The 
liberty  of  the  elections  at  which  they  were  chosen  and  the 
liberty  of  their  parliamentary  action  as  lords  spiritual  were 
realities,  t  The  great  Canonical  principle  of  the  liberty  of 
the  church  was  practically  applied  in  j)arliament.  The 
prelates  were  actually  free  to  criticise  and  oppose  i)roposed 
legislation  objectionable  to  the  church.  Moreover,  led  by 
the  primate,  they  could  in  divers  cases  give  or  pledge  such 
ecclesiastical  consent  as  would  exempt  statutes  from  the 
Canon  law  rule  against  temporal  legislation  affecting  the 
church.  As  a  rule  the  canons  enacted  by  the  convocations 
of  the  church  and  the  statutes  enacted  by  the  parliament  of 
the  state  did  not  conflict.  Bishoi)  Stubbs  in  a  passage 
quoted  and  endorsed  by  Prof.  Gneist  observes  : 

*  See  Stubbs  :  History,  III.  351,  (library  ed.)  on  the  safeguards  of  the  Com- 
mon law. 

f  Gneist  :   Verfassung  196  ;  Ashworth,  Constitution,  I.  240. 


niSTORICAL   COMMENTARY.  153 

**  Almost  all  the  examples,  however,  in  which  the  clergy 
*' went  beyond  their  recognized  rights  in  regulating  the  con- 
*'duct  of  the  laity,  come  under  the  head  of  judicial  rather 
*'  than  of  legislative  action.  .....  Any  direct  conflict 

'*  between  the  two  legislatures  is  extremely  rare.  In  the 
''normal  state  of  English  politics,  the  prelates,  who  were 
"the  real  legislators  in  convocation  and  also  formed  thema- 
'' jority  in  the  house  of  lords,  acted  in  close  alliance  with 
"  the  crown,  and,  under  any  circumstances,  would  be  strong 
*' enough  to  prevent  any  awkward  collision  ;  if  their  class 
''sympathies  were  with  the  clergy,  their  great  temporal  es- 
"tates  and  offices  gave  them  many  points  of  interest  in 
"common  with  the  laity.  Thus,  although,  as  the  judicial 
' '  history  shows,  the  lines  between  spiritual  and  temporal 
"judicature  were  very  indistinctly  drawn,  England  was 
"  spared  during  the  greatest  part  of  the  middle  ages  any 
' '  war  of  theories  on  the  relations  of  the  church  to  the  state. ' '  '^ 


DIVISION  F. 

Further  consideration  of  tlie  coiinection  bet^veen  ttie 
Canon  laiv  and  the  Hngflisli  la^w.  Of  the  case  in 
Fit^herbert's  Abridgement,  Annuity  41,  or  Rous  v, 
an  Abbot. 

In  the  case  of  the  Prior  of  Castlaker  v.  the  Dean  of  St. 
Stephens,  a  question  concerning  the  exercise  of  spiritual 
power  by  the  temporal  legislature  was  undoubtedly  in- 
volved. Another  and  a  previous  case  will  now  be  examined, 
which  may  perhaps  have  involved  a  like  exercise  of  spiritual 
power,  for  it  certainly  affected  both  ecclesiastical  persons 
and  ecclesiastical  property.  Designated  by  the  names  of 
the  parlies  it  is  that  of  Rous  v.  an  Abbot,  but  it  is  best 
known  as  the  case  in  Fitzherbert' s  Abridgment,  Annuity 
41.,  It  is  found  entered  also  in  the  earlier  Abridgment  of 
Statham  under  Annuity  in  Easter  27  Henry  VI.,  who  gives 
the  names  of  the  parties  as  above  mentioned.     Neither  of 

*Stubbs:  History,  III.  351,  (library  ed.).  Gneist :  Vevfassung,  p.  405, 
note  6.    Cf.  Ash  worth,  Constitution,  II.  56  . 


154  HISTORICAL   COMMENTARY. 

these  brief  statements  contains  any  reference  to  the  Canon 
law  and  it  may  therefore  be  wholly  erroneous  to  conjecture 
that  the  decision  of  the  court  had  any  connection  with  that 
law.  On  the  other  hand  it  is  certain  that  the  case  was  one 
affecting  both  ecclesiastical  persons  and  ecclesiastical  prop- 
erty and  that  in  it  a  temporal  court  held  a  whole  chapter  of 
a  temporal  statute  to  be  void  because  judicially  ascertained 
to  be  "impertinent  to  be  observed"  and  to  legislate  into  ex- 
istence certain  irremediable  evils  connected  with  certain  ec- 
clesiastical seals. 

This  case  arose  under  the  statute  of  Carlisle,  de  asporta- 
tis  religiosorum,  35  Edward  I.,  which  jDrohibited  the  pay- 
ment of  taxes  and  the  transportation  of  things  by  English 
monasteries  to  foreign  ecclesiastical  superiors.  ^  Its  4th  chap- 
ter legislates  concerning  the  seals  of  certain  monasteries  and 
came  under  judicial  consideration  in  the  Court  of  Common 
Pleas  in  Easter  term,  27  Henry  VI.  Fitzherbert' s  entry  is 
translated  as  follows,  from  the  text  of  his  first  edition,  folio 
50^. ,  Annuity,  41 : 

"27  Henry  YI.  Note  that  the  statute  of  Carlisle  pro- 
' '  vides  of  the  orders  of  Cistercians  and  Augustinians,  which 
"have  convent  and  common  seal,  that  the  common  seal  shall 
"  be  in  the  keeping  of  the  prior  who  is  under  the  abbot 
* '  and  of  four  others  of  the  wisest  of  the  house,  and  that 
"every  deed  sealed  with  the  common  seal,  when  not  so 
' '  kept,  shall  be  void ;  and  the  opinion  of  the  court  was  that 
"  the  statute  is  void,  for  it  is  impertinent  to  be  observed 
''^  {que  cest  estatut  est  void  quar  es  inpartinent  destre  oh- 
'^  serve)^  for  the  seal  being  in  their  keeping,  the  abbot  can 
"  seale  nothing  with  it,  and  when  it  is  in  the  hands  of  the 
' '  abbot,  it  is  out  of  their  keeping  ipsofacto^  and  if  the  statute 
' '  be  observed  every  common  seal  will  be  defeated  by  a  simple 
*  surmise  which  cannot  be  tried,  etc." 

The  above  phrase,  ' '  cest  statut  est  told  quar  es  inparti- 

'nent  destre  ohserve^^^  is  Englished  by  Coke  differently  in 

different  places.     At  the  end  of   118a  of   8  RejDorts,   the 

statute  is  stated  to  be  void,  because  ' '  im j)ertinent  to  be  ob- 

*  Statutes  of  the  Realm,  I.  150. 


HISTORICAL   COMMENTARY.  155 

*^ served,"  a  very  literal  translation.  In  2  Institutes,  588, 
however,  he  renders  the  French  words  less  literally  and 
says  that  the  statute  was  void,  "because  inqiossible  to  be 
"observed."  In  the  general  proposition  at  the  beginning 
of  the  same  folio  118a  concerning  acts  of  parliament  ad- 
judged to  be  void,  he  prefers  the  words,  "imj^ossible  to  be 
performed."  In  this  latter  form  of  words  the  law  of  the 
case  has  been  generalized  and  has  found  permanent  lodge- 
ment in  the  books  :  See  Bacon's  Abridgment,  Ed.  Bouvier, 
vol.  9,  p.  217;  Yiner's  Abridgment,  Statutes,  E.  6,  No.  15  ; 
Blackstone'  s  Commentaries  I. ,  91 ;  Varnum'  s  Trevett  against 
Weeden,  30. 

Coke  does  not  mention  Statham,  but  he  doubtless  had 
used  the  latter' s  entry  of  the  case.  It  is  Coke  who  asserts 
that  the  court  was  the  Common  Pleas. 

Statham' s  entry  of  the  case  is  thus  translated  : 

"Easter:  27  Henry  VI.  One  Rous  brought  writ  of  an- 
"nuity  against  an  abbot  and  showed  deed  of  the  annuity, 
"made  by  the  predecessor  of  the  same  abbot  and  sealed -with 
"the  convent  seal,  and  that  the  annuity  was  for  certain 
"loaves,  ale  and  gowns  and  other  things,  etc.  Pole:  the 
"statute  of  Carlisle  willed  that  the  Cistercians,  Premonsta- 
^^  tenses  and  Austins,  who  have  convent  and  common  seal, 
"that  the  common  seal  shall  be  in  keeping  of  the  j)rior  who 
"is  under  the  abbot,  etc.,  and  of  four  others  the  most  wise 
"of  the  house,  and  that  any  deed  sealed  with  the  common 
"seal,  that  is  not  so  in  keeping,  shall  be  void.  And  we 
"  say  that  at  the  time  that  this  deed  was  sealed  the  seal  was 
' '  out  of  their  keeping.  And  the  opinion  of  the  court  was 
"  that  this  statute  is  void,  for  it  is  impertinent  to  be  observed 
''"{queces  estaiute  est  voide  qar  il  est  impartinent  desire 
'  •  observe) ;  for  the  seal  being  in  their  keeping,  the  abbot  can 
"seal  no  thing  with  it,  for  when  it  is  in  the  abbot's  hands, 
"it  is  out  of  their  keeping  ipso  facto.  And  if  the  statute 
"  should  be  observed,  each  common  seal  would  be  defeated 
**  by  a  simple  surmise  that  can  not  be  tried,  etc.  Vide  that 
"it  was  well  disputed  and  several  excerptions  were  taken  to 
"the  plea,  etc." 

A  collation  of  the  f  orefiroino;  texts  of  the  two  Abridgments 


156  HISTORICAL   COMMENTARY. 

shows  that  every  thing  in  Fitzherbert  is  copied  from  the 
previous  work  of  Statham.  The  opinion  of  the  court  is 
in  identical  language  in  both  entries.  Certain  things  men- 
tioned by  Statham  are,  however,  omitted  by  Fitzherbert. 
The  plaintiff  was  named  Rous.  The  defendant  was  an  ab- 
bot. The  action  was  brought  for  an  annuity.  Pole  (whom 
Foss  states  was  then  a  serjeant)  was  counsel  for  the  defend- 
ant. The  deed  to  Rous  for  the  annuity  from  the  abbot's 
2:)redecessor  was  impeached  as  void  by  Pole,  because  made 
against  the  statute.  In  holding  the  statute  void,  it  is  clear 
that  the  court  held  the  deed  good.  There  was  much  discus- 
sion and  there  were  several  exceptions  in  the  case. 

In  both  Fitzherbert  and  Statham,  the  court  is  stated  to 
say  that '*  the  statute  is  void."  These  words  must  be  un- 
derstood to  mean  that  a  part  of  the  statute  was  void,  viz.^ 
the  4th  chapter,  relating  to  the  convent  seals.  This  point  is 
of  importance,  for  the  whole  statute  of  Carlisle  was  at  one 
time  maintained  to  be  "no  act  of  parliament."  The  reason 
alleged  therefor  was  that  the  statute  was  made  by  the 
king,  the  lords  temporal  and  the  commonalty  only,  in  the 
absence  of  the  bishops  and  the  other  lords  spiritual.  The 
answer  to  this  objection  was  that  the  lords  spiritual  were 
summoned  by  writs  of  summons  as  regularly  as  the  tem- 
poral lords,  but  absented  themselves  from  the  parliament. 
In  2  Institutes,  on  the  Statute  of  35  Edward  I.,  585,  ^SQ^  (ed. 
1642),  Coke  examines  this  objection  to  the  whole  statute,  and 
holds  that  it  was  a  valid  act  of  i)arliament.  On  the  shortly 
following  page  588  of  the  same  work,  however,  he  holds  the 
seals  chapter  of  the  statute  to  be  void,  for  the  reasons  given 
by  the  court  in  Fitzherbert. 

It  should  be  pointed  out  that  there  was  only  a  limited 
period  during  which  the  vigour  of  the  whole  statute  was  by 
any  possibility  questionable  on  the  ground  of  the  absence 
of  the  spiritual  lords.  The  statute  was  made  in  35  Edward 
I.,  and  was  confirmed  by  the  statute  4  Edward  III.,  cap.  6.'* 
At  the  i^arliament  of  the  latter  date  the  lords  spiritual  must 
have  been  present  and  uniting  in  the  confirmation.  * 

Neither  Fitzherbert  nor  Statham  say  any  thing  suggest- 

*  statutes  of  the  Realm,  I.  263. 


HISTORICAL   COMMENTARY.  157 

ing  the  idea  of  the  seals  chajiter  of  the  statute  being  void 
because  legislating  concerning  ecclesiastical  persons  and 
property  without  the  j^ope's  consent.  It  certainly  did  so 
legislate  and,  according  to  the  Canon  law,  it  was  ipso  facto 
et  ipso  jure  null,  without  his  consent.  Any  temporal  court 
holding  it  void  for  want  of  his  consent  would  bring  in  the 
Canon  law  with  full  vigour.  There  is,  however,  no  mention 
of  anything  Canonical  in  either  of  the  Abridgments.  Prima 
facie^  it  seems  therefore  inadmissible  to  conjecture  that  the 
decision  of  the  case  was  in  any  way  based  on  the  Canon  law. 
Nevertheless,  further  consideration  may  show  it  to  be  rea- 
sonable to  assert  that  the  remarkable  language  of  the  de- 
cision, as  to  the  statute  being  void,  had  some  sort  of  con- 
nection with  the  Canon  law. 

The  case  was  certainly  one  affecting  ecclesiastical  persons 
and  property,  which  arose  under  a  temporal  statute.  The 
chapter  of  the  statute,  which  was  drawn  in  question,  was 
so  framed  as  to  produce  manifest  wrongs  to  the  church,  and 
to  laymen  dealing  with  the  church,  in  certain  important 
matters.  The  temporal  court  did  not  attempt  to  strain  the 
resources  of  interpretation  in  dealing  with  the  objectionable 
text,  but  boldly  confronted  the  issue  of  this  part  of  the 
statute  being  void  or  valid.  It  held  the  4th  chapter  void 
for  matter  of  substance  contained  therein,  not  for  any  de- 
fect of  form  in  the  method  of  its  enactment.  This  temporal 
court  actually  used  and  applied  to  this  unrepealed  statute 
the  word,  "«o/<^,"  which  is  the  precise  equivalent  in  Law 
French  and  in  English  for  the  Canon  law  terms,  ''^  nullum^'' ^ 
and,  ^^non  valets  It  can  not  be  denied  that  this  jurisdic- 
tional application  of  the  word  "void"  to  an  unrepealed 
statute  is  remarkable  language  in  a  Common  law  court  at 
any  date.  It  was  then  very  remarkable,  because  the  case 
is  the  lirst  on  record  in  which  English  speaking  temporal 
judges  jyroceedmg  Jurlsdictio7ialiier  applied  the  word  void 
to  an  uni'epealed  statute  for  cause  ascertained  by  them- 
selves. It  can  not  be  denied  that  the  like  application  of 
like  language  to  temporal  statutes  by  ecclesiastical  judges 
was  then  and  had  been  long  before  well  known  in  the  Canon 
law.     In  the  case  of  the  constitutions  of  Clarendon,  the  Pri- 


l."^8  irisTOTiicAL  commentary/ 

mate  Becket  had  declared  most  important  temporal  legisla- 
tion to  be  null  or  void,  and  had  done  so  successfully. 
Neither  can  it  be  doubted  that  the  ecclesiastical  courts  would 
have  declared  the  seals  chapter  of  the  statute  to  be  void, 
whenever  they  had  an  oi)portunity  and  were  free  to  declare 
the  Canon  law. 

While  it  is  not  contended  that  the  decision  of  the  court 
was  made  in  formal  obedience  to  any  of  the  canons  of  the 
church,  it  is  contended  that  it  is  reasonable,  under  the  cir- 
cumstances, to  conjecture  that  the  decision  had  some  sort 
of  connection  with  the  Canon  law. 

Among  such  circumstances,  not  yet  fully  dwelt  upon,  is 
the  brevity  of  Statham'  s  entry,  which  Fitzherbert  curtails 
in  rei3eating.  Some  things  were  certainly  omitted.  Stat- 
ham expressly  says  that  the  case  was  well  disputed  and 
several  exceptions  were  taken  to  the  plea.  It  may,  there- 
fore, be  possible  that  some  of  the  things  omitted  might,  if 
known,  serve  to  connect  the  decision  in  some  direct  or  in- 
direct way  with  the  Canon  law  doctrine  concerning  temBO- 
ral  statutes  affecting  ecclesiastical  right  and  liberty. 

The  conjecture  now  made,  it  is  contended,  is  reasonable 
from  the  point  of  view  of  the  legal  state  of  things  existing 
in  England  before  the  Reformation,  when  there  was  a  par- 
tition of  power  between  church  and  state,  and  when  each 
organization  had  courts  and  laws  of  its  own.  This  gen- 
eral conclusion  is  in  harmony  with  the  particular  conclu- 
sion to  be  reached  by  a  consideration  of  the  Canon  law 
then  in  local  vigour  in  England  on  the  subject  of  ecclesias- 
tical seals.     This  will  now  be  considered. 

Be  the  law  of  the  case  what  it  may,  the  fact  is  that  the 
seals  chapter  of  the  statute  of  Carlisle  flatly  conflicted  with 
the  express  written  law  of  the  church  in  England,  to  wit, 
the  third  part  of  the  penultimate  constitution  made  at  the 
Pan- Anglican  Council  held  at  London  in  1236.  This  lega- 
tine  constitution  begins  by  stating  that  the  use  of  tabellions 
did  not  obtain  in  the  kingdom  of  England,  on  which  ac- 
count it  was  the  more  necessary  to  have  recourse  to  authen- 
tic seals.  It  then  enacts  that  archbishops,  bishops,  abbots, 
priors  and  other  clerical  persons  named,  should  have  seals. 


HISTORICAL   COMMENTARY.  159 

The  third  part  of  the  constitution  prescribes  that  in  order 
to  diligent  care  being  had  concerning  the  custody  of  seals, 
each  of  the  persons  aforesaid  should  keep  his  own  seal  or 
commit  it  to  one  single  person^  of  whose  faith  he  felt  con- 
fident, to  be  kept  by  him  ;  and  moreover  that  such  person 
should  swear  that  he  would  faithfully  keep  it,  that  he  would 
not  give  it  to  any  one  to  seal  any  thing,  and  that  he  would 
not  seal  any  thing  therewith,  from  which  prejudice  might 
be  caused  to  any  one,  except  what  his  lord  had  previously 
diligently  read  and  seen  to,  and  so  had  commanded  to  be 
sealed  :  Sane  de  custodia  slgillorum  cur  am  habere  dili- 
gentem  Praeclpimus^  ut  unusquisque  per  se  illud  custo- 
dial^ vel  uni  soll^  de  cujus  fide  confidal^  custodiendum 
commillal^  qui  ellam  jurel^  quod  illud  fideliler  custodiel^ 
nee  ad  sigillandum  allquid  alicui  concedet^  nee  ipse  etiam 
aliquid  sigillet  inde^  ex  quo  possit  praejudicium  alicui 
generari^  nisi^quod  dominus  ejus  prius  legerit  et  mderit 
dilig enter ^  et  sic praeceperit  sigillari.'^  The  ecclesiastical 
authority  of  this  constitution  can  not  be  questioned.  It 
was  enacted  at  an  English  council  presided  over  by  a  Car- 
dinal Legate  a  latere. 

There  is  certainly  nothing  ^'impertinent  to  be  observed" 
in  the  legislation  of  the  constitution  as  to  ecclesiastical 
seals.  If  such  was  the  binding  law  of  keeping  and  using 
them  before  the  statute  of  Carlisle,  it  was  so  after  it,  sup- 
posing the  fourth  chapter  of  the  statute  to  be  void.  Ac- 
cording to  the  constitution,  abbots  and  priors  must  act  in 
regard  to  them  in  one  way,  and  according  to  the  statute  in 
another.  If  the  law  of  the  constitution  was  in  vigour  and 
observation  in  monasteries  when  the  statute  was  made,  the 
Court  of  Common  Pleas  must  have  known  that  law  and 
have  known  that  the  statute  was  contrary  thereto,  even  if 
it  did  not  say  so.  Assuming  these  premises  to  be  true  when 
the  court  held  the  seals  chapter  of  the  statute  to  be  void 
and  decided  the  first  abbot's  deed  to  be  valid  against  his 
successor,  it  not  only  used  the  Canon  law  language,  but  also 
tacitly,  or  otherwise,  caused  a  Canon  law  constitution  to  be 
followed  in  its  place. 

*  (Ama<t<tt<to/ic8  Legatinae  :  Oxon.  1769  (bound  with  Lindwood),  page  69. 


160  HISTORICAL   COMMENTARY. 

At  the  bottom  of  the  case,  there  was  thus  an  actual  con- 
flict between  the  law  of  the  church  and  the  law  of  the 
statute. 

These  remarks  upon  the  possible  relation  of  the  case  in 
question  to  the  Canon  law  are  submitted  to  the  reader  for 
what  they  are  worth.  Even  if  they  be  wholly  rejected,  the 
case  is  one  of  the  very  highest  interest.  It  is  unnecessery 
to  assume  that  it  had  anything  to  do  with  the  Canon  law, 
to  increase  its  claims  to  attentive  consideration.  Its  im- 
portance is  of  the  first  magnitude,  Canon  law,  or  no  Canon 
law.  In  the  first  place,  it  is  the  earliest  case  in  which  a  Com- 
mon law  court  used  the  word  ' '  void ' '  in  holding  an  unre- 
j)ealed  statute  to  be  void  for  a  cause  ascertained  and  de- 
cided by  itself.  In  the  second  x)lace,  the  Law-French  of  the 
case,  as  transformed  into  English  by  Coke  in  the  beginning 
of  118a  of  8  Reports,  has  secured  a  permanent  place  in 
the  English  law  on  the  head  of  statutes  being  "void"  be- 
cause "impossible  to  be  performed,"  regardless  of  any  dif- 
ferences of  doctrine  among  those  using  that  jjliraseoiogy.* 
In  the  third  place.  Coke' s  language  and  doctrine,  while  con- 
nected with  the  previous  case  of  the  convent  seals,  became 
connected  with  the  subsequent  case  of  Trevett  v.  Weeden, 
which  is  the  first  reported  suit  in  America  in  which  a  statute 
was  judicially  rejected  as  void  because  unconstitutional. 
See  chapter  25,  post^  and  also  end  of  chapter  16,  post. 

DIVISION  G. 

Of  the  Reformation  and  tlie  restrictions  ^wliicli  it  re- 
moved from  tlie  po^wer  of  parliament. 

By  the  Reformation,  a  fundamental  change  was  made  in 
the  English  constitution.  The  partition  of  power  between 
the  English  state  and  the  Roman  church  was  abolished.  In 
ecclesiastical  matters,  the  prerogative  of  the  king,  and  the 
authority  of  parliament  were  no  longer  restricted  by  any- 
thing said  or  done  by  a  power  seated  outside  of  England. 
By  the  statute  of  26  Henry  VIII.,  c.  1.  the  i)ope  was  de- 

*See  Chapter  16,  No.  10. 


HISTORICAL   COMMENTARY.  161 

posed  from  the  supreme  headship  of  the  church  of  England 
and  the  king  substituted  in  his  stead /^ 

By  a  nonohstante  clause  in  the  statute,  derogation  was 
made  to  the  Canon  law  in  England  under  the  terms  "  for- 
eign laws. ' '  These  changes  were  followed  by  the  well-known 
controversies  concerning  the  limits  of  the  perogative  in  ec- 
clesiastical matters,  by  the  abolition  of  the  crown  and  of  the 
king's  supreme  headship  of  the  church,  and  by  the  restora- 
tion of  both  after  an  interregnum.  Then  came  the  revolu- 
tion of  1688  giving  parliament  a  plenitude  of  power  in  both 
ecclesiastical  and  temporal  matters,  which  was  so  absolute 
that  no  king  could  dispute  it  in  the  name  of  prerogative. 

How  real  this  plenitude  of  power  is,  may  be  seen  from 
the  words  of  Blackstone  (Com.,  I.  160),  which  have  been 
previously  quoted.  According  to  them,  parliament  has  a 
power  which  is  absolute  and  without  control,  and  has  a 
sovereign  and  absolute  authority  in  making,  repealing  and 
expounding  laws,  ' '  concerning  matters  of  all  possible  de- 
' '  nomination  eccles  iastical  or  temporal. "  ^ 

It  will  be  observed  that,  according  to  the  foregoing  pas- 
sage, there  is  no  restriction  upon  the  vigour  and  scoi)e  of  an 
act  of  parliament  in  ecclesiastical  matters.  This  is  very  dif- 
ferent from  the  legal  state  of  things  before  the  Reformation, 
under  the  partition  of  powers  between  the  Roman  church 
and  English  state.  Then,  as  shown  by  Lord  Chief  Justice 
Frowick's  words  in  the  case  in  the  Year  Book  of  21  Henry 
yiL,  the  power  of  parliament  was  restricted  in  ecclesiastical 
matters.  Parliament  could  not  legally  enact  the  ecclesi- 
astical measure  mentioned  by  him,  if  the  poi)e  did  not  con- 
sent thereto. 

*  statutes  of  the  Realm,  III.  492. 


11 


162  HISTORICAL   COMMENTARY. 


CHAPTER  XIV. 


Conclusions  as  to  conflicts  toet^ween  tlie  la^ws  of  tlie 
cliurcli  and  tlie  laiivs  of  tlie  state  from  tlie  point  of 
vieiv  of  tlie  division  into  spiritual  and  temporal 
po^wers  and  tlie  jurisprudence  of  tlie  Canon  la^w. 

Comparison  of  tlie  Canon  laiv  >^itlitlie  constitutional 
lai;v  of  tlie  United  States  and  tlie  several  states  on 
tlie  liead  of  conflicts  of  laisvs. 


This  chapter  will  contain  statements  of  certain  proposi- 
tions concerning  the  Canon  law,  which,  it  is  contended,  are 
sustained  by  the  foregoing  investigation  in  chapters  12  and 
13.  They  will  be  stated  in  connection  with  certain  other 
propositions  concerning  the  constitutional  law  of  the  United 
States  and  the  several  states.  Both  series  of  propositions 
bear  upon  the  subject  of  this  Essay.  They  will  be  stated  in 
connection  with  each  other  under  six  several  heads,  as 
follows  : 

1.  It  is  the  ancient  doctrine  of  the  Canon  law  that  tem- 
poral, lay,  or  civil  statutes  are  null  for  certain  Canonical 
cause.  It  is  the  received  doctrine  of  lawyers  throughout 
the  United  States  that  an  act  of  Congress  or  a  state  statute 
may  be  void  or  null  for  constitutional  causes. 

2.  Such  canonical  cause  aforesaid  is  defect  of  lay  power 
to  enact  temporal  statutes  contrary  to  ecclesiastical  right  or 
liberty.  Here  and  now,  it  is  the  received  doctrine  of  lawyers 
that,  under  a  written  constitution,  there  can  exist  no  legis- 
lative power  of  making  laws  which  are  contrary  to  such  con- 
stitution and  in  conflict  therewith. 

3.  A  Canon  law  court  will,  upon  fitting  Judicial  opportu- 
nity, proceed  as  competent  to  inquire  and  decide  concerning 


HISTORICAL   COMMENTARY.  163 

such  Canonical  cause  and  such  defect  of  power  and  (they 
being  found)  to  hold  the  questioned  temporal  statute  to  be 
null,  ipso  facto  et  ipso  jure.  This  is  shown  by  the  Rotal 
case  of  the  Roman  lands  and  Genoese  testament,  decided  in 
1648,  in  which  the  Roman  Rota  expressly  held  that  every 
temporal  statute  ascertained  and  decided  to  be  contrary  to 
ecclesiastical  liberty  is  ipso  facto  et  jure  nulhim  ex  de- 
fectu  potestatis  laicorum  statuentium. 

It  was  therefore  neither  a  novelty  nor  an  inelegancy  in 
point  of  jurisprudence  for  the  framers  of  an  American  con- 
stitution so  to  frame  it  that  there  should  exist  thereunder  a 
judicial  competency  of  deciding  questioned  legislation  to  be 
constitutional  or  unconstitutional  and  of  holding  it  void  or 
valid  accordingly. 

4.  The  Canon  law  contains  a  division  of  spiritual  and  tem- 
poral powers  between  a  church,  or  religious  organization, 
and  a  state,  or  political  organization.  The  constitution  of 
the  United  States  contains  a  division  of  delegated  and  re- 
served powers  between  the  United  States  and  the  several 
states,  and  a  further  division  of  such  delegated  powers  be- 
tween Congress  and  other  vestees.  Each  of  the  constitu- 
tions of  the  several  states  contains  a  division  of  powers  be- 
tween the  legislative,  executive  and  judicial  departments  of 
the  government  of  the  state.  The  constitution  of  each  state 
proceeds  upon  the  basis  that  thero  is  a  division  of  federal 
and  municipal  powers  between  the  Union  and  the  state. 

The  Canon  law  shows  that  according  to  the  principles  of 
law  and  the  doctrines  of  jurisprudence,  defect  of  power  in 
a  system  of  division  of  powers,  is  legal  and  rightful  cause 
for  a  temporal  statute  being  null,  and  that  the  questioii  of 
the  existence  of  such  cause  may  be  a  judicial  one. 

There  is  therefore  precedent  for  saying  that  it  accords  with 
the  principles  of  law  and  the  doctrines  of  jurisprudence  for 
a  written  constitution  to  be  so  framed  that  defect  of  legisla- 
tive power,  resulting  from  its  system  of  divisions  of  powers, 
shall  be  a  legal  and  constitutional  cause  for  a  statute  being 
void,  and  that  the  question  of  the  existence  of  such  cause 
may  be  a  judicial  one. 

5.  Thus  the  idea  of  a  judicial  competency  of  deciding 


164  HISTORICAL  COMMENTARY. 

a  questioned  statute  to  be  contrary  to  binding  right  and 
holding  it  therefore  null  and  void  can  be  traced  as  far  back 
as  the  Canon  law.  Furthermore,  the  use  of  the  word  "null" 
and  the  word  "void"  to  express  the  absence  of  legislative 
vigour  in  an  unrepealed  statute,  is  not  a  new  Americanism 
in  speech.  The  Rotal  judgment  above  mentioned  holds 
part  of  a  temporal  statute  to  be  "null"  for  the  Canonical 
cause  specified  and  shows  what  the  Canon  law  had  been  for 
a  long  period  of  time. 

The  case  of  the  Prior  of  Castlaker  t\  the  Dean  of  St. 
Stephens  in  the  reign  of  Henry  YII.  is  a  Common  law  case 
having  relation  to  the  Canon  law,  and  the  report  of  the  ar- 
gument at  the  bar  shows  that  the  word  "void"  was  actu- 
ally used  as  legally  applicable  to  temporal  statutes  legislat- 
ing on  matters  merely  affecting  the  spiritualty.  The  case 
of  R-ous  n.  an  Abbot  in  the  reign  of  Henry  VI.  may  or  may 
not  be  connected  with  the  Canon  law,  but  certainly  was  one 
affecting  ecclesiastical  persons  and  property.  In  it  th  e  court 
applied  the  word  "void"  to  a  whole  chapter  of  an  unre- 
pealed statute. 

6.  In  any  of  the  medieval  states  throughout  which  the 
division  into  spiritual  and  temporal  powers  was  funda- 
mental law  under  the  sanction  of  spiritual  coercion,  the 
nullity  of  a  temporal  statute  must  have  been  merely  an  ef- 
fect. The  cause  of  that  effect  was  the  contrariety  of  the 
statute  to  ecclesiastical  right  or  liberty.  Controversies  be- 
tween the  spiritual  and  temporal  powers,  must,  therefore, 
have  generally  turned  on  questions  concerning  what  was  or 
was  not  contrary  to  ecclesiastical  right  or  liberty,  rather 
than  on  any  question  of  the  validity  or  invalidity  of  a  tem- 
poral statute  conceded  to  be  so  contrary.  Similarly,  here 
and  now,  there  are  numerous  differences  of  opinion  as  to 
what  is  or  is  not  constitutional.  It  is  exceptional  to  hear 
the  doctrine  maintained  that  a  law  should  be  deemed  obli- 
gatory, although  pronounced  by  a  competent  court  to  be 
unconstitutional. 


HISTOKIOAL   COMMENTARY.  165 


CHAPTER  XY. 

Of  tlie  Hns:lisli  la^w  concerning-  parliamentary  legis- 
lation in  certain  temporal  cases  before  tlie  Revolu- 
tion of 1088. 

No.  1.  Of  acts  of  parliament  restricting  tJte  royal  pre- 
rogative before  1688. 

No.  2.  Of  the  case  of  Godden  v.  Hales  in  the  reign  of 
James  II. 

No.  3.  Of  the  sheriff' s  case  in  the  Year  Book  of  2  Henry 
YII  p.  6 


This  chapter  will  consider  the  English  law  concerning 
parliamentary  legislation  in  certain  cases  affecting  the  royal 
prerogative,  which  arose  before  the  Revolution  of  1688.  As 
is  well  known,  that  revolution  divides  the  history  of  the 
law  of  prerogative  into  two  parts,  which  differ  as  to  the 
king' s  relations  to  acts  of  parliament. 

No.  1. 

Of  acts  of  parliament  restricting  prerogative  before  1688. 

While  it  is  true  that  since  the  Revolution  of  1688  an 
English  court  would  never  think  of  holding  an  act  of  par- 
liament to  be  void  because  it  conflicted  with  the  royal  pre- 
rogative, a  like  assertion  can  not  be  made  for  the  time  be- 
fore that  date.  In  the  case  of  Godden  v.  Hales,  in  1686, 
the  Court  of  King's  Bench  actually  held  that  important 
provisions  of  the  statute  of  25   Charles  II.  cap.  2,  were 


166  HISTORICAL   COMMENTARY. 

void  because  conflicting  with  the  king's  rightful  preroga- 
tive. It,  moreover,  gave  judgment  accordingly,  there  being 
no  other  question  in  the  cause.  "^ 

No.  2, 
Of  the  case  of  Godden  v.  Hales. 

The  decision  in  this  case  is  celebrated  in  English  history 
as  intimately  connected  with  the  causes  of  the  revolution  of 
1688.  The  abolition  of  the  royal  power  of  dispensing  with 
any  statute,  made  in  the  1st  year  of  William  and  Mary, 
was  caused  by  the  existence  of  this  decision.  The  case  is 
discussed  at  length  by  Macaulay,  who  criticises  both  the 
decision  and  the  motives  of  the  court  with  great  severity. 
Tlie  second  paragraph  of  the  bill  of  rights  in  the  statute  of 
1  William  and  Mary,  sess.  2.  cap.  2.,  formally  declares  to 
be  illegal  what  the  decision  declared  to  be  legal. 

It  is  thus  matter  of  authority  that  the  decision  was  erro- 
neous not  only  after  the  Revolution  but  also  w^hen  it  was 
made.  This  does  not,  however,  prevent  it  from  being  of 
the  highest  interest  to  every  one  investigating  the  origin  of 
a  judicial  competency  of  deciding  a  questioned  statute  to 
be  contrary  to  binding  right  and  holding  it  to  be  therefore 
void.  In  this  remarkable  decision  the  court  regarded  it  as 
a  judicial  question  whether  or  not  a  statute  could  bind  the 
king  in  certain  cases  of  prerogative  right  and  regarded  it  as 
a  judicial  obligation  to  hold  the  statute  to  be  invalid  after 
answering  that  question  in  the  negative.  According  to  now 
prevalent  American  ideas,  if  the  constitution  of  England 
had  been  written,  and  such  a  prerogative  right  had  been 
constitutional,  the  court  ought  to  have  done  precisely  what 
it  did.  Moreover,  had  the  decision  been  one  in  favour  of  a 
popular  right  instead  of  a  prerogative  right,  the  assertion 
of  a  judicial  competency  of  deciding  a  questioned  statute 
to  be  contrary  to  binding  right,  might  have  been,  perhaps, 

*  Godden  v.  Hales  is  reported  in  Shower,  475  ;  Comberbach,  21  ;  Cobbett's 
State  Trials,  IX.  1167.  It  is  discussed  in  Macaulay's  History,  Ed.  2,  vol.  2, 
ch.  6,  p.  84. 


HISTORICAL   COMMENTARY.  167 

very  differently  regarded.  Such,  indeed,  was  precisely 
what  happened  in  Rhode  Island  in  1786  as  to  the  case  of 
Trevett  v.  Weeden,  which  will  be  fully  considered  herein- 
after and  need  only  be  briefly  referred  to  here. 

Trevett  v.  Weeden  was  a  case  in  which  a  statute,  made 
under  an  uiiwritten  constitution,  and  destroying  the  popu- 
lar right  of  trial  by  jury,  was  judicially  rejected  as  uncon- 
stitutional and  therefore  void.  In  the  interest  of  popular 
rights,  an  American  court  flatly  refused  to  obey  a  clearly 
worded  statute.  Godden  v.  Hales  was  a  case  in  which  an 
English  court,  also  i^roceeding  under  an  unwritten  consti- 
tution, did  likewise  in  the  interest  of  royal  prerogative. 
Animated  by  difl'erent  motives  and  striving  for  different  ob- 
jects, both  courts,  nevertheless,  performed  like  judicial  acts 
in  regard  to  questioned  legislation.  The  American  court  is 
celebrated  in  history  for  the  success  of  its  action  not  only 
in  its  own  state,  but  throughout  a  "growing  world,"  for 
Trevett  ^.  Weeden  is  the  first  reported  case  of  its  kind  on 
this  continent.  The  English  court  is  memorable  in  history 
for  the  failure  of  its  action  on  the  eve  of  a  revolution  which 
it  helped  to  provoke.  This  historical  contrast  must  strike 
all  who  consider  it.  That  illustrious  man  of  science,  Joseph 
Henry,  taught  his  students  at  Princeton  to  record  their  fail- 
ures as  well  as  their  successes  in  making  experiments.  What 
is  true  of  physical  science,  is  as  true  of  legal  science.  Let 
the  failures  be  studied  in  history  as  well  as  in  the  laboratory. 

The  following  extracts  from  Shower's  report  of  the  case 
of  Godden  ^).  Hales  will  be  sufficient  for  the  present  pur- 
pose : 

''Debt  for  five  hundred  pounds  upon  the  statute  of  25 
*'Car.  II.  c.  2,  for  accei:>ting  and  exercising  the  office  of 
''colonel,  etc.,  not  having  taken  the  oaths,  and  subscribed 
"  the  declaration ;  and  set  forth  an  indictment,  and  convic- 
"tion  for  the  same,  per  quod  actio  aca^ei^it. 

"  The  defendant  pleads  in  bar,  that  after  his  admission, 
"and  before  three  months  expired,  the  king,  by  his  letters 
"patent,  had  pardoned,  released,  and  dispensed  with  said 
"  oaths.     The  plaintiff  demurs. 


168  HISTORICAL    COMMENTARY. 

*'Mr.  ISTortliey  for  the  plaintiff The  king 

"can  not  control  an  act  of  parliament  that  disables  n 
"man 

''Glanville,  Serjeant  [for  defendant] .    There 

"  is  a  great  distinction  between  the  laws  of  property  and 
"  those  of  government " 

The  oi)inion  of  the  court  is  as  follows :  "  The  Lord  Chief 
"  Justice  took  time  to  consider  of  it,  and  spake  with  the 
"other  judges,  and  three  or  four  days  after,  declared  that 
"he  and  all  the  judges  (except  Street  and  Powell  who 
' '  doubted)  were  of  opinion,  that  the  kings  of  England 
" were  absolute  sovereigns;  that  the  laws  were  the  king's 
' '  laws ;  that  the  king  had  a  power  to  dispense  with  any  of 
"the  laws  of  government  as  he  saw  necessity  for  it ;  that 
"  he  was  the  sole  judge  of  that  necessity;  t7mt  no  act  of 
''^parliament  could  take  away  that  power  ;  that  this  was 
' '  such  a  law ;  th-at  the  case  of  Sheriffs  in  the  second  year 
"of  Henry  the  Seventh,  was  law,  and  always  taken  as  law  ; 
"and  that  it  was  a  much  stronger  case  than  this.  And 
"  therefore  gave  judgment  for  the  defendant." 

Thus  the  court  held  the  statute  invalid  because  it  was  ju- 
dicially ascertained  to  deprive  the  king  of  a  part  of  his 
rightful  prerogative. 


No.  3. 

Of  the  Slier  iff  s  case  in  the  Year  Book  of  2  Henry  VIL, 
p.  6. 

The  Sheriff's  case  alluded  to  by  Lord  Chief  Justice  Her- 
bert was  that  of  the  shrievalty  of  Northumberland  in  the 
Year  Book  of  2  Henry  YIL  (p.  6  and  Index  under  i?<9^).  An 
interpretation  of  the  report  of  this  case,  different  from  that 
given  in  the  opinion  of  the  court  in  Godden  v.  Hales,  is  to 
be  found  in  the  argument  of  Northey  for  the  defendant. 
Northey's  argument  is  reported  at  much  greater  length  in  8 
Bacon's  Abridgment,  70-79  (ed.  Bouvier)  than  in  Shower, 
Comberbach  or  the  State  Trials.  Northey  disputed  the  au- 
thority of  the  Sheriff'' s  case  for  anything.     Macaulay  re- 


HISTORICAL   COMMENTARY.  169 

gards  Northey's  argument  in  Godden  v.  Hales  as  insincere. 
This  imputation,  if  true,  does  not  however  necessarily  affect 
the  correctness  of  his  view  of  the  Sheriff'' s  case. 

Lord  Bacon' s  understanding  of  the  report  of,  the  case  is 
found  in  his  Maxims  Reg.  19,  p.  38  of  the  Law  Tracts,  2d. 
Edition.  It  accords  with  the  subsequent  opinion  in  Godden 
V,  Hales,  and  is  as  follows  : 

''  So  if  there  be  a  statute  made  that  no  sheriff  shall  con- 
*Hinue  in  his  office  above  a  year,  and  if  any  patent  be  made 
*'to  the  contrary,  it  shall  be  void;  and  if  there  be  any 
''  clausula  de  non-ohstante  contained  in  such  patent  to  dis- 
''pense  with  this  present  act,  that  such  clause  also  shall  be 
''  void  ;  yet  nevertheless  a  patent  of  the  sheriff's  office  made 
' '  by  the  king  for  term  of  life,  with  a  non-ohstante  will  be  good 
"in  law  contrary  to  such  statute,  which  pretendeth  to  ex- 
'*  elude  non-ohstante' s  ;  and  the  reason  is,  because  it  is  an 
"inseparable  prerogative  c»f  the  crown  to  dispense  w^ith  po- 
"litic  statutes,  and  of  that  kind;  and  then  the  derogatory 
"  clause  hurteth  not."  The  marginal  note  quotes  for  this 
the  case  in  the  Year  Book  of  2  Henry  VII.,  p.  6. 

Lord  Bacon  thus  was  of  opinion  that  a  statute  taking 
away  the  king's  prerogative  power  of  dispensing  with  laws 
in  certain  cases  was  not  binding  upon  the  judges,  and  re- 
garded the  case  in  2  Henry  YII.  as  judicial  authority  for 
that  proposition. 

The  following  account  of  the  Sheriff's  case  is  in  part 
translated  and  in  part  abridged  from  the  report  in  the  Year 
Book  of  2  Henry  YII.,  p.  6^: 

"  In  the  Exchequer  Chamber  before  all  the  justices,  it  w^as 
"  shown  for  the  king,  how  King  Edward  lY.,  by  his  letters 
"patent  had  ordained  that  the  Earl  of  N.  be  sheriff  of  the 
"same  county,  and  had  granted  the  office  of  the  aforesaid 
"county  to  the  said  Earl  for  the  term  of  his  life,  with  all 
"the  other  offices  appurtenant  thereto,  rendering  therefor 
"to  the  king  at  his  exchequer  annually  one  hundred 
"pounds,  without  any  account,  or  without  rendering  any 
"other  thing  therefor,  etc.  Now  wiiether  the  patent  was 
"good;  and  also  how  the  patent  should  be  understood. 
"And  as  to  the  first  point  the  justices  held  the  patent  good; 


170  HISTORICAL   COMMENTARY. 

''  for  it  is  sucli  a  thing  as  can  well  be  granted  for  term  of 
'  •  life,  or  for  inheritance,  since  divers  counties  have  sheriffs 
''by  inheritance,  and  such  begin  by  grant  of  the  king. 
''  Then  was  shown  a  resumption,  and  then  a  proviso  for  H. 
''Earl  of  N.  was  shown,  so  that  the  patent  remains  in  its 
' '  force. 

"Radcliif  showed  the  statutes  of  28  Edward  III.  c.  7. 
"and  42  Edward  III.  c.  5.,"^  whereby  there  should  be  no 
"  sheriff  for  more  than  a  year,  etc.  ;  and  showed  how  there 
"was  a  non-obstante.  And  this  non-obstante  the  king 
' '  always  had  upon  his  prerogative  as  well  concerning  the 
"value  and  contents  of  lands,  other  things  granted  by  the 
"king,  abandoned  shi]js,  and  charters  of  murders,  and  sev- 
' '  eral  other  cases  in  which  there  are  statutes  providing  that 
"patents  which  do  those  things  should  be  void.  Neverthe- 
"  less  the  patents  of  the  king  are  good  with  a  non-obstante^ 
^' hut  y^it\\out2i  non-obstante  t\iQ  imtents  are  void  because 
' '  of  the  statutes.  So  here  the  patent  is  with  a  non-obstante. 
"Wherefore,  etc.  But  as  to  the  second  point  several  of  the 
' '  j  ustices  held, "  etc. 

The  second  point  was  as  to  how  the  patent  should  be  con- 
strued. It  was  discussed  at  considerably  greater  length 
than  the  first  point.  The  report  ends  with  the  following 
words,  the  j)recise  meaning  of  which  is  im^Dortant  ; 

"  But  because  this  was  the  first  time,  the  justices  and  ser- 
"  jeants  and  attorney  of  the  king  agreed  that  they  should 
' '  study  well  as  to  the  matter,  and  they  should  be  heard, 
' '  and  what  they  had  said  was  for  nothing,  for  they  wished 
"to  be  at  their  liberty  to  say  what  they  wished  and  to  think 
"for nothing  what  they  had  now  said." 

If  this  language  is  to  be  applied  to  the  whole  report,  then 
Northey's  assertion  that  the  case  was  no  authority  for  any- 
thing, is  strongly  supported  by  it.  If,  however,  it  applies 
only  to  the  discussion  of  the  second  point,  the  authority  of 
the  decision  on  the  first  point  can  not  be  attacked  except 
on  the  general  ground  of  error.  That  part  of  the  report, 
which  is  concerned  with  the  first  point,  has  in  itself  no 

*  Cf.  statute  1  of  14  Edward  III.  cap.  7  j  Statutes  of  the  Eealm,  I.  283. 


HISTORICAL    COMMENTARY.  171 

obscurity.  It  purports  to  give  the  common  opinion  of  all 
the  king's  judges  assembled  in  the  Exchequer  Chamber. 
That  opinion  was  to  the  effect  that  royal  letters  patent  doing 
certain  things  were  prohibited  and  made  void  by  statute, 
but  that  the  king  had  the  prerogative  of  derogating  to 
such  statute  by  a  nonohsianie  clause  in  such  letters  patent, 
which  then  were  good. 


CHAPTER  XVI. 

Of  tlie  doctrine  concerning:  void  statutes  from  whicli 
Blackstone  dissents  in  liis  tentli  rule  of  interpre- 
tation. 

No.  1.  Of  Blackstone' s  tentli  rule  for  construing 
statutes. 

No.  2.  Of  Coke' s  doctrine  upon  the  invalidity  of  statutes 
in  certain  cases. 

No.  3.  Of  the  case  of  the  Mayor  and  Commonalty  of 
London  v.  Wood. 

No.  4.  Of  Bonham's  case  and  Coke's  opinion  therein. 

No.  5.  Of  Tregof  s  case. 

No.  6.  Of  the  case  in  Fitzherherf  s  Abridgment^  Cessa- 
mt,  Jt-2. 

No.  7.  Of  two  cases  temp.  Elizabeth  relating  to  the 
statute  of  1  Edward  VI.  Cap.  H. 

No.  8.  Of  Coke  on  iniquum  est  aliquem  suae  rei  esse 
judicem. 

No.  9.  Coke' s  mew  of  the  seals  case  in  FitzherberV  s 
Abridgment,  Annuity  J^l,  or  Rous  v.  an  Abbot. 

No.  10.  Q/"  the  effect  of  Coke's  view  of  the  seals  case  in 
English  and  American  legal  history. 


172  HISTORICAL   COMMENTARY. 

This  chapter  will  be  devoted  to  the  consideration  of  the 
doctrine  concerning  the  invalidity  of  acts  of  parliament  in 
certain  cases,  from  which  Blackstone  dissents  in  his  tenth 
rule  for  the  construino:  of  statutes. 


No.  1. 
Of  Blackstone^  s  tenth  rule  for  construing  statutes. 

Blackstone' s  tenth  rule  for  construing  statutes  must  be 
repeated : 

"Lastly,  acts  of  parliament  that  are  impossible  to  beper- 
"  formed  are  of  no  validity  ;  and  if  there  arise  out  of  them 
"collaterally  any  absurd  consequences,  manifestly  con tra- 
"  dictory  to  common  reason,  they  are,  with  regard  to  those 
"collateral  consequences,  void*."  He  immediately  adds 
that  he  lays  down  this  rule  with  these  restrictions,  although 
he  knows  that  it  is  generally  laid  down  more  largely,  to  the 
import  that  ' '  acts  of  parliament  contrary  to  reason  are  void. ' ' 

No.  2. 

Of  Colce^  s  doctrine  upon  the  invalidity  of  statutes  In  cer- 
tain cases. 

The  larger  laying  down  of  the  rule,  thus  referred  to  by 
Blackstone,  requires  examination.  It  is  a  matter  upon 
which  he  thought  one  way,  and  Coke  another. 

The  following  observation  of  Bowyer's  may  here  conven- 
iently be  quoted :  f 

"  We  must  receive  with  considerable  qualifications  what 
"  Lord  Coke  said,  in  Doctor  BonharrC  s  case  {S  Rep.  118), 
"  in  which  he  declared  that  the  Common  Law  doth  control 
"Acts  of  Parliament,  and  adjudges  them  void  when  against 
"  common  right  and  reason.  And  Lord  Chief  Justice  Holt, 
''in  TTie  City  of  London  v.  Wood  {\2  Mod.  687),  adopted 
"  this  dictum  of  Lord  Coke,  which  is  sui:)ported  by  Lord 

*  Commentaries,  I.  91. 

fReadiugs  iu  tlie  Middle  Temple  in  1850,  pages  84,  85. 


HISTORICAL   COMMENTARY.  173 

*' Chief  Justice  Hobart,  in  Dayy.  Savage  (Hob.  Rep.  87), 
' '  wlio  insisted  that  an  Act  of  Parliament  made  against 
''natural  equity,  so  as  to  make  a  man  judge  in  his  own 
"cause,  was  void.'- 


No.  3. 

Of  the  case  of  the  Mayor  and  Commonalty  of  London  v. 
Wood.'^ 

This  case  was  an  action  of  debt  brought  before  the  court 
holden  before  the  mayor  and  aldermen  of  London.  The  ques- 
tion arose  whether  the  very  man  (the  Lord  Mayor)  who,  as 
the  head  of  the  city,  presided  over  the  court,  was  not  also 
a  party  to  the  suit.  The  action  was  brought  in  the  court  in 
the  name  of  the  mayor  and  commonalty  of  London  and  it 
was  held  to  be  error,  f  Holt,  C.  J.,  said  :  "What  my  Lord 
"  Coke  says  in  Bonliam's  case,  in  his 8  Co.,  is  far  from  any 
"  extravagancy,  for  it  is  a  very  reasonable  and  true  saying, 
"  that  if  an  act  of  parliament  should  ordain  that  the  same 
"person  should  be  jmrty  and  judge,  or  which  is  the  same 
"thing,  judge  in  his  own  cause,  it  would  be  a  void  act  of 
"  parliament ;  for  it  is  impossible  that  one  should  be  judge 
"and  party,  for  the  judge  is  to  determine  between  party  and 
"party,  or  between  the  government  and  the  i)arty  ;  and  an 
"act  of  parliament  can  do  no  wTong,  though  it  may  do  sev- 
"eral  things  that  look  pretty  odd  ;  for  it  may  discharge 
"one  from  his  allegiance  to  the  government  he  lives  under, 
"  and  restore  him  to  the  state  of  nature  ;  but  it  cannot  make 
"  one  who  lives  under  a  government  judge  and  party.  An 
"act  of  parliament  may  not  make  adultery  lawful,  that  is, 
"  it  cannot  make  it  lawful  for  A.  to  lie  with  the  wife  of  B. : 
"but  it  may  make  the  wife  of  A.  to  be  the  wife  of  B.,  and 
"dissolve  her  marriage  with  A.^'X 

Coke' s  decision  was  made  long  before  the  Revolution  of 

*  12  Modern  Reports,  669,  687. 

1 12  Modern,  687,  reports  the  case  as  the  City  of  London  v.  Wood,   but  the 
opinion  states  that  the  plaintiffs  were  as  above  mentioned. 

X  On  this  ease  compare  Bank  of  U.  S.  v.  Deveaux,  5  Cranch,  page  90. 


174  HISTORICAL    COMMET^TARY. 

1688.  Holt's  decision  was  made  after,  but  shortly  after, 
that  event.  Blackstone  was  born  in  1723  and  his  Commen- 
taries were  written  much  later.  Tliese  dates  are  of  import- 
ance in  connection  wdth  the  doctrine  of  Blackstone' s  tenth 
rule.  That  doctrine  was  intimately  connected  with  the 
omnipotence  of  parliament,  which  was  secured  by  the  Revo- 
lution of  1688.  The  difference  between  the  views  of  Holt 
and  Blackstone  indicates  that  a  jiortion  at  least  of  the  in- 
fluence of  the  revolution  on  judicial  minds  was  but  gradual 
in  its  operation.  Time  was  required  to  reach  the  position 
taken  by  Blackstone.  His  tenth  rule,  indeed,  is  not  in 
every  case  uniformly  applied.  As  will  be  pointed  out  in 
the  next  chapter,  there  is  a  relaxation  of  it,  or  an  exception 
to  it,  in  the  case  of  an  act  of  parliament  conflicting  with 
the  law  of  nations. 


'No.  4. 

Of  BonTiam' s  case  and  Coke's  opinion  tJierein, 

In  Coke's  opinion  in  Bonham's  case  '^  he  says  : 
"  And  it  appears  in  our  books,  that  in  many  cases,  the 
''common  law  will  control  acts  of  parliament,  and  some- 
"  times  adjudge  them  to  be  utterly  void  :  for  when  an  act 
"  of  parliament  is  against  common  right  and  reason,  or  re- 
"pugnant,  or  impossible  to  he  performed^  the  common  law 
"will  control  it,  and  adjudge  such  act  to  he  void.''' 

The  cases  which  Coke  adduces  in  support  of  these  views 
are  the  followinr. 


No. 


Of  Tregor'  s  case. 


The  earliest  is  Tregor's  case  in  the  Year  Book  of  8  Ed- 
ward III.  p.  30,  in  which  Herle,  J.,  said  "  that  some  statutes 
"  are  made  against  law  and  right,  which,  when  those  who 
"made  them  perceiving,  would  not  put  them  in  execution." 

*  8  Reports,  118a. 


HISTORICAL   COMMENTARY.  175 

No.   6. 

Of  the  case  in  Fitzherherf  s  Abridgment,  Cessavit,  4^. 

In 33 Edward  III.,  Fitzherbert's  Abridgment,  Cessavit,  42, 
and  Natura  Bremum,  209  F.,  the  case  was  this :  There  were 
two  coparcener  lords,  and  a  tenant  by  fealty  and  certain 
rent.  One  coparcener  had  issue  and  died.  It  was  decided 
that  the  aunt  and  niece  shall  not  join  in  Cessavit  for  a  cesser 
made  before  the  title  accrued  to  the  niece,  because  the  heir 
shall  not  have  Cessavit  for  the  cesser  in  the  time  of  his  an- 
cestor. For  in  a  Cessavit  the  tenant  may  tender  arrears  and 
damages  and  retain  his  land.  This  he  can  not  do  when  the 
heir  brings  a  Cessavit,  for  the  arrears  incurred  in  the  ances- 
tor's  life  do  not  belong  to  the  heir.  This  decision  was  di- 
rectly contrary  to  the  statute  of  Westminster  the  second, 
chapter  21,  which  expressly  gave  the  heir  a  cessavit,  and,- 
says  Coke,  '' because  it  would  be  against  common  right  and 
'^  reason,  the  Common  law  adjudges  the  said  act  of  parlia- 
*'ment  as  on  that  point  void.*" 


No.  7. 

Of  two  cases  relating  to  the  statute  of  1  Edward  VL, 
Cap.  U. 

In  two  cases  in  Queen  Elizabeth*  s  time  relating  to  the 
statute  of  1  Edward  VI.,  cap.  14,  it  is  said  by  Coke  that 
the  Common  law  controlled  the  statute  and  adjudged  it 
void.  The  act  gave  certain  chauntries  to  the  king,  reserv- 
ing all  rents  and  services  to  the  donors.  It  was  held  that 
the  donors  should  have  the  rent  as  a  rentseck,  etc.,  for  ''  it 
^'  would  be  against  common  right  and  reason  that  the  king 
"should  hold  of  any,  or  do  services  to  any  of  his  subjects." 

*  Northey's  opinion  as  to  the  statute  and  the  writ  of  Cessavit  in  the  colony  of 
New  York  will  be  found  in  Chalmers's  Opinions,  Ed.  1,  vol.  1,  page  130  :  Ed. 
2,  page  149. 


176  HISTORICAL   COMMENTARY. 

No.  8. 

Of  Coke  on  iniquum  est  aliquem  suae  rei  esse  judicem. 

Coke  lays  down  the  following,  without  citing  any  au- 
thority except  a  general  maxim :  ' '  So  if  any  act  of  X)arlia- 
*'ment  gives  to  any  to  hold,  or  to  have  conusance  of,  all 
''manner  of  pleas  arising  before  him  within  the  manor  of 
"D.,  yet  he  shall  hold  no  plea,  to  which  he  himself  is  a 
''party:  for,  as  hath  been  said,  iniquum  est  aliquem  suae 
' '  re  I  esse  judicem, ' ' 

No.  9. 

CoJce's  view  of  the  seals  case  in  FltzlierherV  s  Abridg- 
ment^ Annuity^  lt.1,  or  Rous  v.  an  Abbot. 

Coke  enlarges  on  the  imx)ortant  case  in  Fitzherbert,  An- 
nuity 41,  relating  to  the  convent  seals,  in  which  the  4th 
chapter  of  the  statue  of  Carlisle  was  held  void.  Citing 
Fitzherbert,  he  says  : 

"  The  statute  of  Carlisle,  made  anno  35  E.  1.,  enacts 
"  that  the  order  of  Cistercians  and  Augustines,  who  have  a 
' '  convent  and  common  seal,  that  the  common  seal  shall  be 
"  in  the  keeping  of  the  prior,  who  is  under  the  abbot,  and 
"four  others  of  the  most  grave  of  the  house,  and  that  any 
"deed  sealed  with  the  common  seal,  which  is  not  so  in 
"  keeping  shall  be  void  ;  and  the  opinion  of  the  court  (m 
"•an.  27  H.  6.  Fitzherbert,  Annuity  41.)  was,  that  this 
"statute  was  void,  for  it  is  impertinent  to  be  observed,  for 
"the  seal  being  in  their  keeping,  the  abbot  can  not  sealany- 
"  thing  with  it,  and  when  it  is  in  the  abbot's  hands,  it  is 
"out  of  their  keeping  ipso  facto  ;  and  if  the  statute  should 
"be  observed,  every  common  seal  shall  be  defeated  upon  a 
"simple  surmise,  which  cannot  be  tried." 

It  is  historically  and  legally  important  to  point  out  that 
Fitzherbert' swords  "  inpartinent  destre  observe,^''  are  here 
ri'anslated  by  Coke  by  the  literal  words,  ' '  impertinent  to  be  h 
observed." 


HISTORICAL   COMMENTARY.  177 

In  2  Institutes  588,  however,  in  commenting  upon  the 
statute  of  Carlisle,  he  translated  them  by,  ''inii)ossible  to 
be  obseryed."  In  the  general  proposition  quoted  above 
from  118^^  of  8  Reports,  he  prefers  the  words,  ''impossible 
to  be  performed."  So  modified  the  language  of  the  case 
in  Fitzherbert,  Annuity  41,  on  the  4th  chapter  of  the  stat- 
ute of  Carlisle  has  found  a  i)ermanent  place  in  the  English 
law.* 

No.  10. 

Oftlie  effect  of  CoTce^s  inew  of  the  seals  case  in  English 
and  in  American  legal  history. 

Coke's  phrase,  "impossible  to  be  performed,"  is  adopted 
by  Blackstone  in  his  tenth  rule  above  mentioned,  although 
that  rule  differs  from  Coke's  doctrine.  Coke's  doctrine  was 
laid  down  more  largely  than  Blackstone' s.  Blackstone' s 
view  has  prevailed  in  England,  and  not  Coke's.  Coke's 
doctrine  received  much  attention  in  America  during  the  co- 
lonial period  and  was  a  subject  of  discussion  in  the  seven- 
teenth as  well  as  in  the  eighteenth  century,  f 

The  difference  in  the  legal  history  of  American  and  Eng- 
lish judiciaries  has  not  been  due  exclusively  to  written  con- 
stitutions. The  first  reported  American  case  in  which  a  ju- 
dicial judgment  rejected  a  legislative  act  as  void  because 
unconstitutional,  was  Trevett  v.  Weeden,  which  arose  in 
Rhode  Island,  where  the  then  constitution  was  not  written. 
The  statute  of  Rhode  Island,  which  then  came  under  ju- 
dicial criticism,  prescribed  that  offenders  against  paper 
money  legislation  should  be  criminally  tried  without  a  jury 
and  according  to  the  laws  of  the  land.  Coke' s  doctrine  was 
quoted  with  important  effect.  Counsel  argued  that  statutes 
''impossible  to  be  performed"  were  void,  and  that  such 
was  the  statute  in  question.  :j:  A  statute  prescribing  a  trial 
without  a  jury  according  to  the  laws  of  the  land  was  as- 

*  CJ.  Chapter  13,  Division  F,  paragraph  4. 

tSee  Gray's  Treatise  on  Writs  of  Assistance  in  Qnincy's  Reports  page  527, 
note  28  ;  pages  o20  to  530. 

JVarnum's  Case  of  Trevett  against  "Weeden,  30,  31. 
12 


178  HISTORICAL    COMMENTARY. 

serted  to  be  one  "impossible  to  be  executed."  The  court 
must  have  adopted  this  doctrine.  Although  there  was  no 
united  written  opinion  of  the  court,  the  whole  bench  spoke  by 
deeds  as  strong  as  words  in  the  memorable  judgment  ren- 
dered. In  the  brief  remarks  of  the  judges  individually  in 
voting  upon  the  judgment,  one  of  them  expressly  said  that 
the  statute  was  imx)ossible  to  be  executed  and  voted  ac- 
cordingly. '^ 

According  to  Coke' s  view  of  the  convent  seals  case  and  of 
the  4th  chapter  of  the  statute  of  Carlisle,  ' '  impertinent  to 
"be  observed,"  and,  "impossible  to  be  performed,"  are 
words  of  the  same  meaning.  According  to  Trevett  t.  Weed  en, 
"  impossible  to  be  performed,"  and,  "impossible  to  be  exe- 
cuted," are  words  of  the  same  meaning.  There  are  thus 
links  connecting  these  two  historic  cases.  The  possibility 
that  the  English  case  has  a  connection  with  the  Canon  law 
doctrine  of  temporal  statutes  being  null  for  ecclesiastical 
cause,  thus  becomes  of  additional  interest  to  American 
lawyers. 


CHAPTER  XYII. 

Results  of  tlie  foregfoing:  examination  of  tlie  history 
of  tlie  Bng-lisli  la^w  in  Hngfland. 


The  present  doctrine  of  the  English  law  is  that  judges 
are  bound  by  all  statutes  in  all  cases  according  to  the 
clear  and  clearly  expressed  intention  of  the  legislature. 
The  foregoing  investigation,  it  is  contended,  shows  that  the 
following  distinctions  as  to  different  periods  in  the  life 
of  the  English  constitution  must  be  made,  in  order  to  under- 

*  See  post  Chapter  25,  -whicTi  contains  a  review  of  the  case  of  Trevett  v 
"Weeden. 


HISTORICAL    COMMENTARY.  179 

stand  the  place  which  that  doctrine  occujiies  in  English 
legal  history. 

First.  Before  the  Reformation  a  real  partition  of  power 
between  church  and  state  and  a  real  division  into  temporal 
and  spiritual  powers  existed.  That  "the  English  church 
"shall  be  free,"  quod  Anglicana  ecclesla  libera  slt^  was 
written  in  the  very  first  article  of  Magna  Charta.  This  was 
no  novel  legislation.  It  was  a  declaration  of  the  ancient 
law.  In  consequence  of  the  then  constitution  of  England, 
the  legislative  power  of  parliament  was  essentially  different 
from  what  it  was  after  the  Reformation.  Parliament  could 
not  then  destroy  the  rights  and  liberty  of  the  church  in  two 
classes  of  matters.  The  first  class  included  all  j)urely  spirit- 
ual matters.  The  second  class  included  some  but  not  all 
si3iritual  matters  that  were  mixed  with  the  temporalty.  If 
the  parliament  made  a  statute  so  extending,  it  was  ipso 
facto  and  ipso  jure  void  ex  defectu  potesiaiis.  Such  tem- 
poral legislation  in  such  ecclesiastical  matters  did  not  bind 
either  the  subjects,  the  officials  or  the  judges  of  the  king. 

Second.  Before  the  revolution  of  1688,  there  were  the  first 
developments  of  a  doctrine  that  courts  were  competent  to 
decide  upon  the  rightfulness  or  wrongfulness,  and  ascer- 
tain the  validity  or  invalidity,  of  statutes,  when  it  was 
necessary  to  defend  the  royal  prerogative  against  the  en- 
croachments of  parliamentary  powe4\ 

Third.  Subsequently  to  the  revolution  of  1688,  the  doc- 
trine became  generally  accepted  that  the  judiciary  are  bound 
by  all  acts  of  parliament  in  all  cases  in  which  the  intention 
of  the  legislature  is  clear  and  clearly  expressed.  Neither 
ecclesiastical  rights,  nor  royal  prerogative,  can  resist  the 
vigour  of  any  contrary  act  of  parliament.  Any  relaxation 
of  this  doctrine,  relating  to  statutes  impossible  to  be  per- 
formed, must  be  laid  down  in  the  terms  of  Blackstone's 
tenth  rule. 

Fourth.  Coke's  larger  doctrine  as  to  the  invalidity  of 
statutes,  from  which  Blackstone  dissents,  is  not  accepted  as 
law.  Some  further  consideration  of  this  negative  result 
should  be  made. 

It  may,  perhax)s,  be  true  that  the  rejection  of  Coke's  rule 


180  HISTORICAL   COMMENTARY. 

was  necessary  merely  because  it  could  not  have  been  ac- 
cepted without  changing  the  form  of  government. .   If  this  ,, 
be  so,  the  acceptance  of  Blackstone's  rule  was  not  due  ton 
its  internal  excellence  as  a  rule  of  interpretation  but  to  its^' 
harmony  with  the  form  of  government.     This  view  of  Black- 
stone'  s  rule  is  to  a  certain  extent  encouraged  by  the  prevail- 
ing doctrine  concerning  the  interpretation  of  statutes  con- 
flicting with  the  law  of  nations,  which  is  a  relaxation  of 
Blackstone's  rule,  if  it  be  not  an  exception  to  it.     This  doc- 
trine is  laid  down  by  Lord  Stowell  as  follows  in  the  case  of 
the  Le  Louis,  on  page  239  of  2  Dodson's  Admiralty  Reports  : 

''  Neither  this  British  act  of  parliament,  nor  any  commis- 
''  sion  founded  on  it,  can  affect  any  right  or  interest  of 
"foreigners,  unless  they  are  founded  upon  principles  and 
''impose  regulations  that  are  consistent  with  the  law  of 
"nations.  That  is  the  only  law  Avhich  Great  Britain  can 
' '  apply  to  them ;  and  the  generality  of  any  terms  em- 
^^  ployed  in  an  act  of  parliament  rnust  be  narrowed  in  con- 
"  struction  hy  a  religious  adherence  thereto,"^ 

Thus,  to  avoid  a  conflict  between  the  law  of  nations  and  an 
act  of  parliament,  an  English  judge  will  strain  so  hard  that 
he  will  resort  to  a  forced  construction  of  the  statute.  So 
doing  does  not  affect  the  form  of  government,  for  it  does  not 
affect  the  power  of  parliament  to  derogate  to  the  law  of 
nations.  But  if  parliament  wishes  to  derogate  to  that  law, 
it  is  compelled  to  say  expressly  that  it  proceeds  in  deroga- 
tion thereof,  for  if  it  do  not  do  so,  the  judges  will  certainly 
presume  that  it  proceeds  otherwise  and  will  interpret  its 
act  according  to  such  presumption.  Such  interpretation 
is  not  an  application  of  Blackstone's  tenth  rule,  but  a 
relaxation  of  it,  or  an  exception  to  it.  Without  affecting 
the  form  of  government,  Stowell' s  doctrine  occupies  really 
an  intermediate  place  between  Blackstone's  and  Coke's. 

*  Compare  Murray  v.  the  Charming  Betsey,  2  Cranch,  page  118. 


HISTORICAL   COMMENT APwY.  181 


CHAPTER  XYIII. 

Of  tlie  relation  of  acts  of  parliament  to  tlie  colonies 

tiefore  1776. 

No.  1 .  Of  the  extension  of  acts  of  parliament  to  the  colo- 
nies and  their  trade. 

No.  2.  Of  tJte  statute  of  7  and  8  William  TIL,  cap.  2^, 

No.  3.  Of  the  statutes  relating  to  stranded  ships. 

No.  4.  Of  the  case  of  the  Canary  wine  trade  and  the 
statute  of  15  Charles  11.^  cap.  7. 

No.  5.  Of  the  law  of  statutes  extending  to  the  colonies 
before  1776. 

No.  6.  Of  the  modern  English  law  of  statutes  extending 
to  the  colonies. 


In  the  foregoing  pages  the  law  concerning  acts  of  parlia- 
ment in  England  has  been  discussed.  The  present  chapter 
will  consider  the  relation  of  acts  of  parliament  to  the  colo- 
nies and  the  trade  thereof  before  1776. 

No.  1. 

Of  the  extension  of  acts  of  parliament  to  the  colonies 
and  their  trade. 

Parliament  maintained  that  it  could  bind  the  colonists  in 
America  as  much  as  the  inhabitants  of  England,  whenever 
it  saw  fit  to  pass  an  act  extending  to  the  colonies  or  any  of 
them.  Thus  arose  an  important  branch  of  English  law  com- 
prehending questions  whether  particular  acts  of  parliament 


182  HISTORICAL   COMMENTARY. 

did  or  did  not  extend  to  the  American  colonies  and  their 
trade.  In  the  administration  of  the  government  the  prac- 
tice was  to  settle  such  questions  by  reference  to  crown  coun- 
sel. While  a  crown  counsel  could  not  hold  an  act  of  par- 
liament to  be  void  because  contrary  to  constitutional  right, 
he  did  say  that  an  act  was  void  of  effect  in  the  colonies 
when  he  decided  that  it  did  not  extend  to  them  or  their 
trade.  While  the  importance  of  this  legal  conception  should 
not  be  exaggerated,  it  must  not  be  ignored.  The  colonists 
claimed  as  a  great  constitutional  right  to  which  they  were 
entitled,  that  acts  of  parliament  should  not  extend  to  the 
government  of  the  colonies  except  in  certain  exceptional 
constitutional  cases.  ^  As  a  matter  of  fact,  the  acts  of  par- 
liament expressly  mentioning  the  colonies,  though  of  grave 
imi3ortance,  were  few  in  number.  Other  acts  were  not 
deemed  to  extend  to  the  government  of  the  colonies,  if 
trained  lawyers  did  not  professionally  so  decide.  These 
considerations  have  their  place  in  the  development  of  those 
constitutional  ideas,  which  were  carried  out  in  written  con- 
stitutions establishing  judiciaries  competent  to  criticise  leg- 
islation under  such  constitutions. 

On  this,  as  on  other  heads  of  constitutional  law  concern- 
ing the  English  Colonies,  Chalmers's  collection  of  opinions 
of  crown  counsel  is  the  most  familiar  book  of  reference. 
Forsyth' s  more  recent  collection,  entitled  :  Cases  and  Opin- 
ions on  Constitutional  Law  (London,  1869),  contains  also 
valuable  matter  relating  to  colonies. 

No.  2. 
Of  Wie  statute  of  7  and  8  William  III.,  cap.  22. 

The  statute  of  7  and  8  William  IH.,  cap.  22,  contained 
provisions  of  fundamental  importance  relating  to  the  colo- 
nies.    Its  eighth  section  reads  thus : 

''And  it  is  further  enacted  and  declared  by  the  authority 
"aforesaid,  that  all  laws,  by-laws,   usages  or  customs  at 

*  See  Declaration  of  Ri^jhts  of  14  October,  1774,  in  Journals  of  Congress,  I, 
26,  last  edition. 


HISTORICAL   commentary/  183 

*'this  time  or  which  shall  hereafter  be  in  practice,  or  en- 
*'  deavoured  or  pretended  to  be  in  force  or  practice,  in  any 
"of  the  said  plantations,  which  are  in  any  wise  repugnant 
*' to  the  before  mentioned  laws,  or  any  of  them  [12  Car.  XL 
''cap.  18 ;  15  Car.  II.  cap.  7 ;  22  &  23  Car.  II.  cap.  26,  and 
"25  Car.  II.  cap.  7.],  so  far  as  they  do  relate  to  the  said 
"plantations  or  any  of  them,  or  which  are  [any]  ways  re- 
"pugnant  to  this  present  act,  or  to  any  other  law  hereafter 
"to  be  made  in  this  kingdom,  so  far  as  such  law  shall  re- 
"  late  to  and  mention  the  said  plantations,  are  illegal  null 
"and  void  to  all  intents  and  purposes  whatsoever."* 

According  to  the  foregoing  legislation,  every  colonial  law, 
usage  or  custom,  of  any  of  the  plantations,  is  thereby  made 
illegal  null  and  void,  (1)  if  it  be  repugnant  to  the  said 
statute  of  7  and  8  William  III.,  or  (2)  if  it  be  repugnant  to 
the  four  said  statutes  of  Charles  II.,  "  so  far  as  they  do  re- 
"  late  to  the  said  plantations  or  any  of  them^^  or  (3)  if  it 
be  repugnant  to  any  future  law  of  parliament  "so  far  as 
"such  law  shall  relate  to  and  mention  the  said  plantations." 

How  far  a  statute  of  parliament  related  to,  mentioned,  or 
extended  to,  any  colony  or  colonies,  might  be  a  delicate 
question  of  law.  The  two  following  examples  will  illus- 
trate this  last  proposition. 

No.  3. 

Of  the  statutes  relating  to  stranded  ships. 

In  1767  these  acts  required  interpretation.  Two  crown 
counsel  were  oflScially  of  the  opinion  that  the  act  of  12 
Anne  stat.  2.  cap.  13,  relating  to  stranded  ships  and  goods, 
and  so  much  of  the  act  of  4  George  II.  cap.  12,  as  declared 
the  former  act  to  be  perpetual,  extended  to  the  American 
colonies.  But  they  "were  inclined  to  think"  that  the  3d 
clause  of  the  latter  act,  relating  to  a  newly  introduced 
crime,  did  not  extend  to  those  colonies  (Chalmers's  Colo- 
nial Opinions,  Ed.  2,  212). 

*See  Statutes  of  the  Realm,  VII.,  105. 


184  HISTORICAL   COMMENTARY. 


No.  4. 

Of  the  Canary  wine  trade  and  the  statute  of  15  Charles 
11.^  cap.  7. 

Under  the  statute  of  15  Charles  II.,  cap.  7,  no  wine  or 
other  product  of  Europe  could  be  transported  to  the  Amer- 
ican colonies,  unless  shix3ped  in  Great  Britain.  For  many 
years  Canary  wine  was  shipped  directly  from  the  islands  to 
New  England  and  New  York.  In  1737  the  legality  of  the 
trade  was  questioned  upon  the  ground  that  the  Canaries 
were  geographically  part  of  Europe. 

Fane,  the  crown  counsel,  to  whom  the  question  was  re- 
ferred, thought  that  the  geograj^hical  evidence  showed  that 
the  Canaries  were  not  European.  He  added  that,  if  there 
should  be  any  doubt  upon  the  subject,  the  long  usage  of  the 
trade  itself  was  of  great  weight.  He  was  officially  of  opin- 
ion that  the  trade  was  lawful.  Thus  the  act  of  parliament 
did  not  relate  to  the  wine  trade  of  New  England  and  New 
York  with  the  Canaries.  In  so  far  as  this,  there  was  no  re- 
pugnancy between  the  commercial  customs  of  those  colo- 
nies and  the  provisions  of  the  act  (Chalmers's  Colonial  Opin- 
ions, Ed.  2,  p.  572). 

No.  5. 

Of  the  law  of  statutes  extending  to  the  colonies  before 
1776, 

From  a  consideration  of  the  statute  of  7  and  8  William 
III.  cap.  22  and  the  cases  in  Chalmers,  it  appears  that  when 
the  question  was  whether  or  not  a  colonial  law  was  illegal 
null  and  void  because  of  repugnancy  to  a  parliamentary 
law,  the  following  legal  proposition  was  correct,  according 
to  English  views  in  the  middle  of  the  last  century. 

It  was  not  sufficient  to  ascertain  whether  a  colonial  law  was 
repugnant  to  a  law  of  parliament  in  order  to  know  whether 
the  former  was  or  was  not  illegal  null  and  void.  In  all  cases 
in  which  the  act  of  parliament  did  not  expressly  legislate 


HlSTOmCAL   COMMENTARY.  185 

as  to  its  own  vigour  in  the  colony,  it  was  necessary  to  ascer 
tain  whether  it  was  within  the  limitation  of  7  &  8  William 
III.  cap.  22.  If  it  was  not,  it  had  no  countervailing  vigour 
against  the  repugnant  colonial  law.  It  must  be  ascertained 
whether  the  parliamentary  law  extended  to  the  colony  or 
not.  If  it  did  extend  thereto,  it  must  further  be  ascertained 
whether  it  did  so  wholly  or  only  partially. 

The  American  views,  expressed  in  the  Declaration  of 
Rights  of  1774,*  as  to  the  cases  in  which  parliament  was 
entitled  to  legislate  for  the  colonies,  of  course  restricted  the 
rightful  opportunities  for  applying  the  above  principles. 
In  the  particular  cases,  however,  in  which  it  was  generally 
admitted  in  the  colonies  that  parliament  was  entitled  to 
legislate  for  them,  those  principles  could  be  fully  applied 
without  any  objection  on  the  part  of  any  colonists 

No.  6. 

Of  the  modern  English  law  of  statutes  extending  to 
the  colonies. 

Although  the  statute  of  28  &  29  Victoria,  cap.  63,  belongs 
to  a  date  posterior  to  the  declaration  of  independence,  it 
may  usefully  be  referred  to  in  elucidation  of  the  law  of  the 
British  empire.  It  is  an  act  to  remove  doubts  as  to  the  va- 
lidity of  colonial  laws.     The  2d  section  enacts  that  rf 

' '  Any  colonial  law  which  is  or  shall  be  in  any  respect  re- 
''pugnant  to  the  provisions  of  any  Act  of  Parliament  ex- 
' '  tending  to  the  colony  to  which  such  law  may  relate,  or  re- 
''pugnant  to  any  order  or  regulation  made  under  authority 
''of  such  Act  of  Parliament,  or  having  in  the  colony  the 
"  force  and  effect  of  such  Act,  shall  be  read  subject  to  such 
' '  Act,  order,  or  regulation,  and  shall,  to  the  extent  of  such 
' '  repugnancy,  but  not  otherwise,  be  and  remain  void  and 
"inoperative." 

Under  this  statute,  it  appears  that  in  every  judicial  case 
involving  both  a  colonial  law  and  an  act  of  parliament,  there 

*  Journals  of  Congreas,  Ed.  1800,  vol.  1,  p.  26. 
t  Tarring's  law  relating  to  the  Colonies,  21. 


186  HISTORICAL   COMMENTARY. 

are,  besides  the  question  of  actual  repugnancy  of  the  former 
to  the  latter,  two  other  questions,  which  a  court  must  decide : 

First,  the  extent  of  the  repugnancy,  for,  within  it,  but  not 
beyond  it,  the  colonial  law  is  derogated  to  by  28  &  29  Vic- 
toria, cap.  63  ; 

Second,  the  question  whether  the  act  of  parliament  actu- 
ally extends  to  the  colony  that  made  the  colonial  law. 

How  important  the  latter  question  might  be  is  well  known 
in  literary  circles  throughout  the  United  States.  In  Low  v. 
Routledge,  L.  R.  1  Ch.  App.  42,  the  case  depended  upon 
whether  an  act  of  parliament  extended  to  Canada:  "An 
''  alien  friend,  residing  in  Canada  during  the  publication  in 
"England  of  a  work  composed  by  her,  was  adjudged  en- 
"  titled  to  copyright  under  the  Imperial  Copyright  Act,  4  & 
"5  Vict.  c.  45,  although  she  was  not  so  entitled  by  the 
"Canadian  Copyright  Act, — the  Imperial  Act,  by  ss.  2  and 
"29,  extending  to  all  colonies,  settlements  and  possessions 
"  of  the  Crown  now  and  hereafter."  (Tarring' s  Law  relat- 
ing to  the  Colonies,  p.  21.) 

It  therefore  does  not  now  suffice  to  ascertain  the  extent  to 
which  a  colonial  law  is  repugnant  to  an  act  of  parliament, 
in  order  to  ascertain  how  far  it  is  void  and  inoperative.  It 
is  true  that  the  extent  of  the  repugnancy  in  the  colonial 
law  is  a  condition  of  the  extent  of  its  invalidity  and  inop- 
erativeness, but  this  is  only  one  of  the  conditions  of  the 
limitation.  There  is  also  another  condition,  viz.,  one  limit- 
ing the  vigour  of  the  contradicted  act  of  x^arliament  in 
countervailing  the  repugnant  colonial  act.  If  the  act  of 
parliament  does  not  extend  to  the  colony,  it  has  no  counter- 
vailing vigour  against  a  colonial  law,  which  is  repugnant  to 
it.  This  extending  question  is  one,  which  a  judicial  court 
is  competent  to  decide,  as  is  proved  by  the  case  of  Low  v. 
Routledge. 

It  thus  appears  that  according  to  the  express  written  law 
of  England  it  is  now  true,  that  judges  can  decide  for  them- 
selves whether  and  how  far  an  act  of  parliament  extends  to 
a  colony,  and,  in  accordance  with  such  decision,  must  hold, 
that  it  does  or  does  not  countervail  a  colonial  law  repugnant 
to  it. 


HISTORICAL   COMMENTAKY.  187 


CHAPTER  XIX. 


Of  leg-idlation  for  the   colonies   by  act  o.   prerosfa- 

tive. 


Divisioisr  A. 


Of  tlie  relation  of  tlie  colonies  to  lesfislation  1>y  act 
of  preros^atiire. 


DIVISION  B. 
Of  tlie  case  of  Ouernsey  and  Jersey. 

DIVISION  C. 


Of  the  case  of  Campbell  v.  Hall  or  tliat  o>  tlie  Island 

of  Grenada. 


The  foregoing  is  a  sufficient  discussion  of  the  topic  of 
legislation  for  the  colonies  by  act  of  parliament.  The  next 
head  to  be  considered  will  be  that  of  legislation  for  the 
colonies  by  act  of  prerogative,  that  is  to  say,  bv  the  king  in 
council,  and  not  by  the  king  in  parliament. 


188  HISTORICAL   COMMENTARY. 


DIVISION  A. 

Of  the  relation  of  the  colonies  to  lesrislation  hy  act  of 

prerosfative. 

No  branch  of  constitutional  learning  was  more  important 
for  the  colonial  law  of  the  thirteen  colonies  than  the  law  of 
legislation  by  act  of  prerogative.  Their  charters,  patents 
and  forms  of  government  were  made  by  legislative  acts  of 
prerogative.  Their  legislatures  were  organized  under  such 
legislative  acts,  which  were  passed  by  the  king  in  council 
and  written  in  letters  patent  issued  under  his  great  seal.  In 
so  far  as  the  laws  of  colonial  legislatures  derived  their 
vigour  from  the  metropolitan  government  and  not  from  the 
consent  of  their  colonial  constituents,  they  were  enacted  by 
virtue  of  powers  given  by  such  acts  of  prerogative  and  not 
by  incorporating  acts  of  parliament."^ 

Such  was  the  rule.  An  exception  to  it  existed  in  the  case 
of  the  colony  of  the  Lower  Counties  upon  Delaware.  Al- 
though such  an  exception  existed,  the  organization  of  the 
separate  legislature  of  that  colony  was  not  connected  with 
any  act  of  parliament.  Assuming  it  to  be  true  that  that 
legislature  usurped  power,  such  usurpation  was  made  upon 
the  prerogative  of  the  king,  not  upon  the  authority  of  par- 
liament. 

The  legislative  power  of  the  prerogative  in  colonial  matters 
was  part  of  the  legislative  power  of  the  prerogative  abroad 
as  distinguished  from  the  prerogative  in  England.  The 
term  prerogative  abroad  is  found  frequently  used  in  the 
pages  of  Chalmers' s  Colonial  Opinions.  But  the  addition  of 
the  word  abroad  was  not  obligatory.  In  the  great  case  of 
Campbell  v.  Hall  upon  the  ^prerogative  abroad,  Lord  Mans- 
field uses  the  simple  term  "prerogative"  only.f  The  pre- 
rogative was  always  more  limited  in  its  exercise  at  home 
than  abroad.     This  diiference  was  increased  by  the  revolu- 

*  See  the  charters,  patents  and  commissions  themselves,  passim  ;  also  Chal- 
mers's Opinions  and  Chalmers's  Colonies,  passim. 

t  Cowper's  Reports,  ed.  1794,  p.  204.  See  Division  C.  of  this  Chapter  on 
the  case. 


HISTORICAL   COMMENTARY.  189 

tion  of  1688,  But  there  never  was  any  question  of  tlie  exist- 
ence of  the  king's  power  of  legislating  by  i:)rerogative 
abroad,  either  before  or  after  1688.  Questions,  however,  re- 
lating to  the  limits  of  the  power  make  an  important  branch 
of  English  constitutional  law.  AVliether  the  king's  order  in 
council,  proclamation,  charter,  commission,  or  letters  patent, 
should  be  deemed  legislative,  executive,  judicial  or  mixed, 
might  sometimes  be  itself  a  question.^ 

The  leading  case  of  the  Proclamations  in  1610  is  well 
known  as  making  an  era  in  the  whole  history  of  the  preroga- 
tive. King  James  I.  had  legislated  by  proclamations  against 
building  houses  in  London,  in  order  to  prevent  a  so-called 
overgrovTth  of  the  capital,  and  against  using  wheat  to  make 
starch,  in  order  to  confine  its  uses  to  food.  Coke  was  con- 
sulted. He  and  his  three  associates  delivered  a  formal 
opinion  before  the  privy  council,  so  defining  the  limits  of 
the  prerogative,  that  it  was  made  clear  that  the  above  pro- 
clamations could  create  no  new  offences  and  were  contrary  to 
the  law  of  the  land.  That  is  to  say,  the  king  had  legislated 
beyond  the  right  of  his  power.  His  proclamation  was  null 
and  void  as  a  law,  and  every  court  must  so  hold  it  to  be,  when- 
ever it  was  pleaded.  See  12  Reports,  74;  Gardiner's  His- 
tory of  England  (1603-1642)  II..  104:  2  Cobbett's  State 
Trials,  723. 

Blackstone,  writing  after  the  revolution  of  1688,  declares 
that  the  king  acting  by  prerogative  and  without  his  parlia- 
ment had  no  legislative  power :  Commentaries  I.  271.  This 
must,  however,  be  understood  of  the  prerogative  at  home 
and  not  abroad:  see  his  previous  page  107.  Chalmers's 
Colonial  Opinions,  generally,  show  the  same  to  be  true. 
The  Guernsey  and  Jersey  case,  therein  mentioned,  p.  89,  is 
peculiarly  clear  as  to  the  king  having  a  legislative  capacitv 
of  making  laws  for  those  islands  by  order  in  council. 

t  See  Chapter  20,  No.  8,  post. 


190  HISTORICAL   COMMENTARY. 

DIVISION  B. 
Ot  tlie  case  of  Guernsey  and  Jersey. 

The  following  opinion  of  crown  counsel  shows  that  tlie 
King  could  by  his  prerogative  alone,  and  without  his  parlia- 
ment, act  in  a  legislative  capacity  in  rightful  cases  and  make 
laws  for  a  dependency  or  colony  abroad. 

On  August  12th,  1737,  Ryder  and  Strange,  crown  coun- 
sel, gave  an  official  opinion,  containing,  among  other  things, 
the  following.  Debts  due  to  the  crown  in  Guernsey  and 
Jersey  could  not  be  recovered  through  the  medium  of  the 
courts  of  Exchequer  and  King's  Bench.  The  only  remedy 
which  the  crown  had  for  the  recovery  of  debts  in  those 
islands  according  to  the  existing  law,  was  "by  proceeding 
' '  upon  proper  suits,  to  be  instituted  in  the  courts  there,  ac- 
' '  cording  to  the  course  of  those  courts,  and  sending  thither 
''the  proper  evidence  of  the  debt,  unless  his  majesty  shall 
"think  fit  to  interpose,  in  his  legislatwe  capacity^  and,  hy 
^^  an  order  in  council,  make  a  new  law,  concerning  the 
' '  method  of  recovering  the  crown  debts  against  the  inhab- 
"itants  there."     See  Chalmers's  Opinions,  89. 

It  will  be  observed  that  the  date  of  this  opinion  is  subse- 
quent to  the  Revolution  of  1688.  If  such  a  thing  could  be 
done  after  that  date  by  prerogative,  a  fortiori  it  could  be 
done  previously. 

DIVISION  C. 

Of  tbe  case  of  Campbell  r.  Hall,  or  tliat  of  tlie  Island 

of  Orenada. 

The  decision  in  the  cause  of  Campbell  n.  Hall,  otherwise 
called  the  case  of  the  Island  of  Grenada,  will  be  the  next 
topic  for  consideration.  This  was  an  all-important  case  in 
the  law  of  legislation  for  the  colonies  by  act  of  prerogative. 
On  November  22d,  1774,  the  unanimous  opinion  of  the  Court 
of  King's  Bench  was  delivered  by  L.  C.  J.  Mansfield.  The 
case  is  reported  in  Cowx)er,  204,  and  20  Cobbett's  State  Trials, 
239.     It  is  referred  to  by  C.  J.  Marshall  in  8  Wheaton,  597. 


HISTORICAL    COMMEISTTATIY.  191 

In  Campbell  v.  Hall,-  the  royal  act  held  to  be  void  was  an 
act  of  legislation  made  by  the  king  proceeding  upon  his 
prerogative  in  council  and  not  in  parliament.  The  court,  at 
the  same  time,  held  that  the  said  royal  act  would  have  been 
valid,  had  it  been  issued  i^reviously  to  a  certain  date  not  long 
before.  In  so  doing  it  considered  both  the  right  and  the 
lijnitation  of  the  king's  power  of  legislating  by  his  prerog- 
ative abroad. 

The  great  importance  of  the  principles  involved  in  this 
case  to  the  public  law  of  the  American  colonies  can  not  be 
enlarged  ui)on  here.  It  need  only  be  repeated  that  it  was 
under  acts  of  legislation  made  by  the  king  proceeding  upon 
his  prerogative  exclusively,  that  colonial  legislatures  and 
governments,  as  a  rule,  were  organized.  To  such  acts  of 
prerogative,  as  a  rule,  colonial  laws  owed  their  vigour  in  so 
far  as  tliat  vigour  was  not  derived  from  the  consent  of  the 
constituents  of  the  colonial  legislatures.  This  was  as  true 
of  Georgia,  which  was  established  after  the  Revolution  of 
1688,  as  of  the  twelve  older  colonies. 

The  case  was  very  elaborately  argued  four  several  times 
and  the  opinion  of  the  court  was  unanimous.  The  action 
was  brought  by  the  plaintiff  James  Campbell,  a  natural 
born  British  subject,  who  in  17G3  had  purchased  a  planta- 
tion in  the  island  of  Grenada.  The  defendant  was  AVilliam 
Hall,  who  had  been  a  king's  collector  of  a  duty  of  four  and 
a  half  per  cent.  ui)on  all  dead  commodities  and  sugars  ex- 
ported from  the  island  of  Grenada.  The  action  was  brought 
to  recover  back  a  sum  of  money  which  was  j)aid,  as  the 
said  duty  of  four  and  a  half  x)er  cent.,  on  sugars,  by  and 
on  account  of  the  plaintiff.  The  action  was  one  for  money 
had  and  received.  It  was  brought  on  the  following  ground, 
namely,  ' '  that  the  money  was  paid  to  the  defendant  with- 
' '  out  any  consideration  ;  the  duty  for  which,  and  in  resi)ect 
''of  which  he  had  received  it,  not  liamng  been  imposed  by 
'''lawful  and  sufficient  authority  to  warrant  the  same^ 
That  money  then  still  remained  in  the  hands  of  the  defend- 
ant and  had  not  been  paid  over  to  the  use  of  the  king  ;  so 
remaining ''with  the  privity  and  consent  of  his  majesty's 
''attorney-general,  for  the  exi)ress  purpose  of  trying  tlie 
"'question  as  to  the  validity  of  imposing  this  duty.''' 


392  HISTORICAL  commentary. 

The  facts  stated  in  the  opinion  were  derived  from  a  special 
verdict  of  elaborate  detail. 

The  island  of  Grenada  was  conquered  by  the  British  arms 
from  the  French  king  in  the  war  determined  by  the  treaty 
of  peace,  dated  February  lOth,  1763.  It  was  surrendered 
upon  the  same  terms  of  capitulation  as  the  island  of  Mar- 
tinique ;  which  surrender  was  followed  by  the  cession  made 
in  the  treaty.  On  October  7th,  1763,  a  proclamation  under 
the  great  seal  of  Great  Britain  was  issued,  in  which,  among 
other  things,  the  king  published  and  declared  that  he  had 
by  letters  patent  under  the  great  seal  constituted  certain 
governments,  of  which  Grenada  was  one ;  that  he  had 
given  the  governor  of  each  colony  express  power  and  direc- 
tion, with  the  advice  and  consent  of  the  king's  council  there- 
in, to  summon  a  general  assembly  of  rei3resentatives  of  the 
people  ;  and  had  given  such  governor,  council  and  assembly 
power  to  make  laws,  statutes  and  ordinances  for  their  colony 
such  as  were  usual  in  like  royal  governments  of  America. 
On  March  26th,  1764,  another  proclamation  of  the  king 
under  the  great  seal  was  issued  relating,  among  other  things, 
to  the  survey  of  the  island  and  the  allotment  of  lands,  and 
inviting  purchasers  to  purchase  such  lands.  On  April  9th, 
1764,  letters  patent  were  issued  containing  the  commission  of 
Melville  as  governor  of  Grenada,  with  power  to  summon  a 
colonial  assembly  comj)etent  to  make  laws  with  the  consent 
of  the  governor  and  council  according  to  the  custom  of  like 
colonies.  Under^  the  same,  during  1765,  an  assembly  was 
summoned  and  met  the  governor  in  the  island. 

On  July  2()th,  1764,  an  instrument  containing  letters  pat- 
ent under  the  great  seal  was  issued,  upon  the  validity  of 
which  the  whole  disputed  question  turned.  By  it,  the  king 
in  council  levied  a  duty  of  four  and  a  half  per  cent,  upon 
sugar  and  all  dead  commodities  produced  in  and  exported 
from  the  island  and  abolished  the  old  French  customs  and 
import  duties.  By  this  act,  the  taxation  of  the  colony  was 
assimilated  to  that  of  the  neighbouring  British  islands  of 
the  Leeward  group. 

The  general  question  that  arose  from  the  facts  found  by 
the  special  verdict  is  stated  to  be  this  : 


HISTORICAL   COMMENTARY.  193 

"  Whether  the  letters  patent  under  the  great  seal,  bearing 
*' date  20th  July,  1764,  are  good  and  valid  to  abolish  the 
"French  duties  ;  and  in  lieu  thereof  impose  the  four  and  a 
''half  per  cent,  duty  above  mentioned,  which  is  i)aid  in  all 
"the  British  Leeward  islands." 

It  was  contended  at  the  bar  that  the  letters  patent  were 
void  on  two  points.  The  first  point  was,  that  even  if  they 
had  been  made  before  the  proclamation  of  October  7th, 
1763,  yet  the  king,  of  himself  and  without  the  concurrence 
of  parliament,  could  not  exercise  such  a  legislative  power 
over  a  conquered  country.  After  an  elaborate  discussion, 
this  point  was  decided  to  be  erroneous.  It  was  held  to  be 
unquestioned  and  unquestionable  that  the  king  had  such 
a  right  to  legislative  authority  over  a  conquered  country. 

The  second  point,  upon  which  it  was  contended  that  the 
letters  patent  levying  the  duty  were  void,  was  as  follows, 
namely : 

"  That  though  tne  King  had  sufficient  power  ana  author- 
"ity,  before  the  7th  October,  1763,  to  do  such  legislative 
'-'' act^  yet  before  the  letters  patent  of  20th  July,  1764,  he 
"had  divested  himself  of  that  authority." 

This  second  point  was  decided  to  be  correct.  The  opin- 
ion states  that  "upon  the  second  point  we  are  of  opinion 
'  that  hcfore  the  letters  patent  of  the  20th  July,  1764,  the 
'  king  had  precluded  himself  from  tlie  exercise  of  a  legis- 
lative authority  over  the  island  of  Grenada.  The  first 
'  and  most  material  instrument  i^  the  proclamation  of  the 
'  7th  October,  1763.  See  what  it  is  that  the  king  there 
'  says,  with  what  view,  and  how  he  engages  himself  and 
'  pledges  his  word.  '  For  the  better  security  of  the  liberty 
' '  and  property  of  those  who  are  or  shall  become  inhabi- 
' '  tants  of  our  island  of  Grenada,  we  have  declared  by  this 
' '  our  proclamation,  that  we  have  commissioned  our  gov- 
'  >  emor  (as  soon  as  the  state  and  circumstances  of  the  col- 
' '  ony  will  admit)  to  call  an  assembly  to  enact  laws,  etc' 
'  With  what  view  is  this  made  ?  Is  it  to  invite  settlers  and 
'  subjects :  and  why  to  invite  ?  That  they  might  think 
'properties,  etc.^  mor6  secure  if  the  legislation  was  vested 
'  in  an  assembly,  than  a  governor  and  council  only.  Next, 
13 


194  HISTORICAL   COMMETTTAllY. 

"having  established  the  constitution,  the  proclamation  of 
"the  20th  of  March,  1764,  invites  them  to  come  in  as  pnr- 
"  chasers  ;  in  further  confirmation  of  all  this,  on  the  9th  of 
"April,  1761,  three  months  before  July,  an  actual  commis- 
"sion  is  made  out  to  the  governor  to  call  an  assembly  as 
"soon  as  the  state  of  the  island  will  admit  thereof.  You 
' '  observe,  there  is  no  reservation  in  the  proclamation  of  any 
' '  legislature  to  be  exercised  by  the  king,  or  by  the  gov- 
"ernor  and  council  under  his  authority  in  any  manner, 
"  until  the  assembly  should  meet ;  but  rather  the  contrary : 
"  for  whatever  construction  h  to  be  put  upon  it,  which  may 
"be  very  difficult  through  all  the  cases  to  which  it  may  be 
"applied,  it  alludes  to  a  government  by  laios  in  being ^  and 
"by  courts  of  justice,  not  by  a  legislatme  author iiy^  until 
"an  assembly  should  be  called.  There  does  not  appear 
"from  the  special  verdict,  any  impediment  to  the  calling  of 
"  an  assembly  immediately  on  the  arrival  of  the  governor. 
"But  no  assembly  was  called  then  or  at  any  time  after- 
"  wards,  till  the  end  of  the  year  1760. 

"  We  therefore  think,  that  by  the  two  proclamations  and 
"the  commission  to  Governor  Melville,  the  king  had  imme- 
"diately  ixiidi  irrevocably  granted  to  all  who  were  or  should 
"  become  inhabitants,  or  who  had,  or  should  acquire  property 
' '  in  the  island  of  Grenada,  or  more  generally,  to  all  whom 
"  it  might  concern,  that  the  subordinate  legislation  over  the 
"island  should  be  exercised  by  an  assembly  with  the  con- 
"  sent  of  the  governor  and  council,  in  like  manner  as  the 
' '  other  islands  belonging  to  the  king.  Therefore,  though 
* '  the  abolishing  the  duties  of  the  French  king  and  the  sub- 
"stituting  this  tax  in  its  stead;  which  according  to  the 
"linding  in  this  special  verdict  is  paid  in  all  the  British 
"Leeward  islands,  is  just  and  equitable  with  respect  to 
"Grenada  itself,  and  the  other  British  Leeward  islands, 
"yet,  through  the  inattention  ot*  the  king's  servants  in  in- 
"  verting  the  order  in  which  the  instruments  should  have 
"passed,  and  been  notoriously  published,  the  last  act  is 
'"contradictory  tj  and  in  violation  of  the  first,  and  is 
"  therefore  void.  How  proper  soever  it  may  be  in  respect 
"to  the  object  of  the  letters  patent  of  the  20th  July,  1764, 


HISTORICAL   COMMENTARY.  195 

''to  use  the  words  of  Sir  Philip  Yorke  and  Sir  Clement 
''  AV  earg,  '  it  can  only  now  be  done  by  the  assembly  of  the 
"  'island,  or  by  an  act  of  the  parliament  of  Great  Britain.' 
"The  consequence  is,  judgment  must  be  given  for  the 
"plaintiff." 

It  is  thus  clear  that  the  king  legislating  by  prerogative 
had  established  a  constitution  for  the  island  of  Grenada 
and  that  another  subsequent  act  of  legislation  by  preroga- 
tive was  judicially  decided  to  be  contrary  to  a  colonial  con- 
stitution binding  the  king  and  therefore  was  held  void. 

According  to  the  decision  of  the  English  judges  in  Camp- 
bell V.  Hall  the  king's  prerogative  i)ower  of  legislation  over 
the  colonies  was  limited  by  positive  law.  The  American 
colonies  likewise  maintained  that  that  power  was  so  limited. 
American  and  English  opinions  were  thus  agreed  upon  the 
principle  of  limitation  by  law,  however  much  they  might 
differ  in  drawing  the  line  defining  the  legal  limits  binding 
the  king  in  so  legislating.  As  to  the  legislative  power  of 
parliament  over  the  colonies,  the  state  of  opinions  was  dif- 
ferent. AYlien  the  troubles  before  the  American  revolution 
began,  English  opinion  maintained  that  the  said  power  of 
parliament  was  unlimited  and  held  that  whether  it  legis- 
lated rigorously  or  rightfully,  the  colonies  were  equally 
bound  in  all  cases  by  all  statutes  actually  made  for  them. 
Summo  jure  j)arliament  could  enact  jus  inlqwim  for  the 
colonies  as  well  as  for  England.  On  the  other  hand,  Amer- 
ican opinion  maintained  that  parliamentary  legislative  power 
over  the  colonies  was,  of  right,  limited  by  the  colonists'  con- 
stitutional rights.  This  limitation  by  constitutional  right, 
it  will  be  observed,  is  distinctly  different  from  a  limitation 
by  positive  law.  This  dift'erence  was  especially  obvious  in 
relation  to  the  form  of  government  as  distinguished  from  the 
matter  of  government.  This  is  exemplified  by  the  relation 
of  the  judiciary  to  the  two  kinds  of  legislation.  A  chal- 
lenged act  of  prerogative  legislation  could  be  decided  un- 
lawful and  held  therefore  void  by  the  judiciary,  as  was  done 
in  Campbell  v.  Hall.  But  at  that  very  date  no  court  could 
decide  a  challenged  act  of  parliament  to  be  contrary  to  con- 
stitutional right  and  hold  it  therefore  void.     Every  court 


196  HISTORICAL   COMMENTARY. 

must  therefore  hold  sucli  act  of  parliament  to  be  binding, 
regardless  of  its  being  truthfully  or  untruthfully  challenged 
on  the  ground  of  constitutional  right. 

These  distinctions  are  of  importance  for  the  purposes  of 
this  Essay.  They  show  that,  if  prerogative  legislation 
should  exist  under  an  American  written  constitution,  and 
the  state  judiciary  should  decide  wrongful  and  hold  void  an 
act  thereof,  so  doing  would  merely  be  following  the  example 
of  the  British  constitution  in  the  reign  of  George  III. 
But  it  would  not  be  following  that  example  for  the  state 
judiciary  to  decide  unconstitutional  and  hold  void  a  statute 
of  the  state  legislature.  No  American  constitution  could  es- 
tablish such  a  judicial  competency,  without  differing  from 
the  British  constitution  as  it  was  when  Blackstone  wrote 
his  Commentaries.  At  the  same  time  the  American  idea  of 
such  an  enlarged  competency  must  have  an  historical  rela- 
tion to  the  English  idea  of  the  more  restricted  competency 
in  Campbell  v.  Hall. 


HISTORICAL   COMMENTARY.  197 


CHAPTER  XX. 

Of  acts  of  colonial  leg^islatures  repug-nant  to  tlie  la^ws 
of  Hns:land  and  of  tlie  nullity  thereof  consequent 
upon  sucli  repug^nancy. 

Of  tlie  exercise  of  tlie  prerogfatiTe  concerning:  colo- 
nial acts  questioned  or  doubted  for  sucli  repug:- 
nancy. 

Of  tlie  case  of  ^Wintlirop  v,  Lrccliniere  *'  appealed 
lionie ''  from  tlie  colony  of  Connecticut. 

No.  1.  Of  the  principle  that  the  laws  of  a  colony  should 
not  he  repugnant  to  the  laws  of  England. 

No.  2.  Of  the  distinction  between  a  colonial  act  repug- 
nant to  the  laws  of  England  and  one  conflicting  with  an 
act  of  parliament  legislating  for  the  colonies. 

No.  3.  Further  considerations  concerning  the  word  '' re- 
pugnant.'''' 

No.  4.  Of  the  nature  of  the  exercise  of  the  prerogative^ 
when  the  Icing  declared  in  council  that  a  colonial  act  was 
null  and  void  because  repugnant  to  the  laws  of  England. 

No.  6.  Of  the  colonies  which  transmitted^  and  those 
which  did  not  transmit,  the  acts  of  their  legislatures  to 
the  king  in  council  for  his  approval  or  disapproval. 

No.  6.  Of  tlie  modus  procedendi  in  disapproving  laws 
in  three  different  classes  of  cases  before  the  king  in  coun- 
cil. 

No.  7.  Of  the  case  of  Winthrop  v.  Lechmere,  temp. 
George  I.  and  George  II. 

No.  8.  Whether  the  order  in  council  determining  Win- 
throp V.  Lechmere  loas  purely  judicial^  or  partly  judicial 
and  partly  legislative. 

No.  9.  Of  certain  appeals  to  the  king  in  council  from 
Canada  since  1867. 


198  HISTORICAL   OOMMEN'J'ARY. 

The  acts  of  colonial  legislatures  were  null  and  void,  when 
they  were  repugnant  to  the  laws  of  England.  In  so  far  as 
the  subject  of  this  Essay  makes  it  needful,  this  chapter  will 
consider  the  legal  requirement  that  the  laws  of  a  colony 
should  not  be  repugnant  to  the  laws  of  England. 

No.  1. 

Of  the  principle  that  the  laws  of  a  colony  should  not  be 
repugnant  to  the  laws  of  England, 

In  the  charters  and  other  letters  patent,  which  as  a  rule 
organized  the  various  colonies,  it  was  always  expressed  or 
imx)lied  that  the  laws  made  by  their  respective  legislatures 
should  be  agreeable  to  the  laws  of  England,  or  not  contrary 
to  the  laws  of  England,  or  not  repugnant  to  the  laws  of 
England.  All  these  three  phrases  were  used,  but  the  last, 
that  of  not  being  repugnant^  may  be  considered  the  most 
characteristic  of  the  three.  It  is  laid  dow^n  by  Story  as  the 
received  doctrine  of  the  English  law  that  the  laws  of  a  col- 
ony should  not  be  repugnant  to  the  laws  of  .England.  In 
his  Commentaries  (ed.  1,  vol.  1,  p.  144),  he  observes  that 
the  colonial  ''assemblies  had  the  joower  of  making  local 
' '  laws  and  ordinances,  not  repugnant  to  the  laws  of  Eng- 
"land,  but  as  near  as  may  be  agreeable  thereto  subject  to 
"the  ratification  and  approval  of  the  crow^n." 

In  Massachusetts,  Rhode  Island,  Pennsylvania  ana  Mary- 
land respectively  the  charter  or  patent  prescribed  that  the 
colonial  laws  should  be  neither  repugnant  nor  contrary  to 
the  laws  of  England.  In  Connecticut,  the  charter  pre- 
scribed that  the  laws  should  not  be  contrary  to  the  law^s  of 
England.  The  word,  ''repugnant,"  w^as  not  used  therein, 
but  the  word,  "contrary,"  was  deemed  to  have  an  identi- 
cal meaning  with  it,  and  the  tw^o  words  were  used  inter- 
changeably. This  is  shown  by  the  following  joint  ojDinion 
of  the  attorney  general  and  solicitor  general  which  was 
given  in  1730  upon  the  charter  of  Connecticut : 

"To  the  right  honourable  the  lords  commissioners  lor 
"trade  and  plantations.     May  it  please  your  lordships, — 


HISTORICAL   COMMENTARY.  199 

"In  obedience  to  your  commands,  signified  to  us,  by  two 
''letters,  from  Mr.  Popple,  transmitting  to  ns  copies  of  the 
''charter  of  the  colony  of  Connecticut,  and  of  the  memorial 
"of  John  Winthrop,  Esq.,  hereunto  annexed,  and  desiring 
"  our  opinion  in  point  of  law,  whether  the  said  colony  have 
"thereby  any  power  vested  in  them  of  making  laws,  which 
"affect  property,  or,  whether  that  power  is  not  confined  to 
"the  making  of  by-laws  only,  and  whether,  if  they  have 
"not  the  power  of  making  laws  affecting  property,  they 
"have  not  forfeited  their  charter,  bypassing  such  laws; 
"we  have  considered  the  said  charter,  and  memorial,  and 
"are  of  opinion,  that,  by  the  said  charter,  the  general  as- 
' '  sembly  of  the  said  province  have  a  power  of  making  laws, 
"  which  affect  property ;  but  it  is  a  necessary  qualification, 
"of  all  such  laws,  that  they  be  reasonable  in  themselves, 
"and  not  contrary  to  the  laws  of  England;  and,  if  any 
"laws  have  been  there  made,  repugnant  to  the  laws  of 
"England,  they  are  absolutely  null  and  void.  "^ 

"P.  YORKE, 

"C.  Talbot. 
"Aug.  1,  1730." 

In  the  colonies  under  the  immediate  government  of  the 
king  the  constitutions  of  the  place  depended  as  a  rule  upon 
letters  patent  containing  the  king's  commissions  or  delega- 
tions of  powers  to  persons  appointed  his  governors  there. 

Thus  in  the  commission  of  the  first  royal  governor  of  New 
Jersey,  who  was  appointed  upon  the  reunion  of  the  two 
Jerseys,  it  was  provided  that  the  laws  and  statutes  made 
by  the  governor,  council  and  assembly  should  "not  be  re- 
"pugnant,  but  as  near  as  may  be,  agreeable  unto  the  laws 
"and  statutes  of  this  our  kingdom  of  England. "f 

So  too  in  the  draft  of  Governor  Sloughter's  commission 
as  governor  of  New  York,  which  is  dated  31  January,  1690. 
Tills  was  the  instrument  under  which  the  first  representa- 
tive legislature  in  that  colony  was  held.  It  was  therein 
prescribed  that  the  laws  made  by  the  governor,  council  and 

*  Chalmers  :  Opinions,  ed.  2,  pp.  341,  342. 
t  Smith's  History  of  New  Jersey,  p.  324. 


200  HISTORICAL    COMMENTARY. 

assembly  were  to  be,  "as  near  as  may  be,  agreeable  unto 
"the  laws  and  statutes  of  this  our  kingdom  of  England.'"* 

In  North  Carolina  the  earliest  royal  commission  for  the 
office  of  governor  is  dated  January  15th,  1729-30,  the  pro- 
prietary governor  having  held  over  some  time  after  the  sur- 
render. If  was  granted  to  Governor  Burrington.  The 
clauses  relating  to  legislation  contain  the  following  restric- 
tion : 

' '  Which  said  laws,  statutes  and  ordinances  are  not  to  be 
' '  repugnant  but  as  near  as  may  be  agreeable  to  the  laws  and 
"statutes  of  this  our  kingdom  of  Grreat  Britain. "t 

But  it  was  not  necessary  for  the  royal  letters  patent  to 
express  the  truth  that  the  laws  of  the  colony  should  not  be 
repugnant  to  the  laws  of  England.  It  was  implied  by  the 
unwritten  constitution  of  the  empire  of  which  the  colony 
was  a  part.  This  is  shown  by  Story's  general  observation 
above  quoted  and  by  the  following  English  authority. 

In  1775,  Lord  Mansfield,  when  Attorney  General  Murray, 
was  officially  asked  his  opinion  whether  the  legislature  of 
Maryland  had  authority  to  pass  a  certain  act.  His  response 
shows  that  it  was  a  universal  requirement  that  the  laws  of 
a  colony  should  not  be  repugnant  or  contrary  to  the  laws  of 
England.  He  held  that  neither  Maryland  nor  any  other 
colony  could  make  such  a  law.  This  he  laid  down,  although 
no  statement  of  the  legislative  power  of  the  assembly  of 
Maryland  had  been  submitted  to  him.  "The  charter  of 
"Maryland,"  he  said,  "and  the  power  thereby  given  to 
' '  make  laws  is  not  stated.  There  is  always  a  restriction 
' '  that  tliey  should  not  he  contrary  to  the  laws  of  England. ' '  :j: 

It  may  here  be  well  to  make  some  reference  to  the  colony 
of  the  Lower  Counties  upon  Delaware.  It  was  not  under 
the  immediate  government  of  the  king  and  its  legislature 
wa3  not  organized  by  any  royal  letters  patent.  These  cir- 
cumstances did  not,  however,  prevent  it  from  being  bound 
by  the  unwritten  law  of  the  empire  which  prohibited  colo- 
nial legislatures  from  enacting  laws  repugnant  to  those  of 

^Broadhead's  Colonial  Documents  of  New  York,  III.  p.  624. 
t  See  Saunders's  Colonial  Records  of  North  Carolina,  III.  p.  68. 
J  Chalmers  :  Opinions,,  ed.  2,  p.  336. 


HISTORICAL   COMMENTARY.  201 

England.  Besides  too,  the  historical  relations  of  the  colony 
of  the  Lower  Counties  to  the  second  patent  of  the  Duke  of 
York  for  New  York  was  such  that  its  legislature  was  speci- 
ally bound  not  to  enact  laws  so  repugnant.  That  patent 
contained  a  clause  requiring  that  the  laws  of  New  York 
should  not  be  contrary  but  as  near  as  may  be  agreeable  to 
to  the  laws  of  England.  "^ 


No.  2. 

Of  the  distinction  between  a  colonial  act  repugnant  to 
the  laws  of  England  and  one  conflicting  with  an  act  of 
parliament  legislating  for  the  colonies 

It  should  be  observea  with  attention  that  the  repugnancy 
of  an  act  of  a  colonial  legislature  to  the  laws  of  England  was 
not  as  precise  a  contrariety  as  that  raised  by  a  conflict  be- 
tween a  colonial  act  and  an  act  of  parliament  legislating  for 
the  colonies.  A  conflict  between  a  colonial  act  and  such  an 
act  of  parliament  came  within  the  terms  of  the  rule  and  lim- 
itation written  in  the  statute  of  7  and  8  William  III.,  cap. 
22,  which  has  been  previously  discussed  on  pages  182  and 
183.  But  it  was  by  the  unwritten  law  and  constitution 
of  the  empire  that  colonial  legislation  was  null  and  void 
when  repugnant  to  the  laws  of  England.  It  was  sometimes 
easy  to  ascertain  the  contrariety  involved  in  such  repugnancy. 
Sometimes,  however,  it  was  by  no  means  an  easy  thing  to 
ascertain  it  precisely.  While  colonial  laws  were  required 
to  be  agreeable  to  the  laws  of  England,  such  requirement 
was  not  measured  by  a  cast-iron  rule.  As  some  of  the  let- 
ters patent  above  referred  to  expressed  the  idea,  such  acts 
were  to  be  as  agreeable  as  may  he  to  the  laws  of  England. 
These  cases  of  repugnancy  between  colonial  and  parliament- 
ary statutes  must  not  be  confounded.  A  case  of  such  repug- 
nancy and  one  of  such  conflict  must  be  regarded  as  distinctly 
different  things.  They  differed  not  only  in  the  respects  al- 
ready mentioned  but  also  in  others  equally  important. 

*  See  Poor's  Charters,  p.  786. 


202  HISTORICAL   COMMENTARY. 

When  tlie  acts  of  colonial  legislatures  were  submitted  to 
the  attention  of  the  king  in  council,  the  royal  approval  or 
disapproval  was  declared  after  due  examination  and  consid- 
eration. Among  the  grounds  for  disapproving  a  colonial 
act  was  its  ascertained  repugnancy  to  the  laws  of  England. 
The  acts  of  the  respective  colonial  legislatures  had  vigour 
until  the  king' s  disapproval  was  declared.  Such  exercise  of 
the  prerogative  operated  as  a  repeal  and  was  frequently 
called  by  that  name.  On  the  other  hand,  the  king's  ap- 
proval operated  as  a  confirmation  and  was  frequently  so 
termed.  ^ 

The  royal  discretion  in  approving  and  disapproving  colonial 
acts  had  a  varied  scope,  but  was  not  unlimited.  An  act  of 
parliament  was  necessary  to  enable  the  king  to  approve 
colonial  acts  conflicting  with  acts  of  parliament.  The  stat- 
ute of  10  &  11  Victoria,  cap.  71,  is  such  an  act.  It  was 
passed  in  order  that  the  queen  might  give  her  assent  to  a 
certain  Canadian  act:  See  Bowyer's  Readings  in  1850,  page 
84. 

IS^o.  3. 

Furtlier  considerations  concerning  the  word  ^^repug- 
nant.'''' 

As  has  been  said,  the  word  repugnant  may  be  considered 
the  most  characteristic  of  the  terms  used  in  this  part  of  the 
law  of  prerogative  abroad.  It  is  not  found  in  the  constitu- 
tion of  the  United  States,  but  is  selected  by  C.  J.  Marshall 
in  Marbury  v.  Madison  to  express  the  idea  of  contrariety 
thereto,  or  conflict  therewith.  The  words  in  which  he  puts 
the  question  initiating  his  constitutional  discussion  in  tliat 
case  are:  ''whether  an  act,  repugnant  to  the  constitution, 
"  can  become  the  law  of  the  land." 

It  may  therefore  seem  to  some  natural  to  expect  that  cases 
can  be  found  in  which  colonial  courts  decided  acts  of  colo- 
nial legislatures  to  be  repugnant  to  the  laws  of  England  and 
held  them  therefore  void. 


C/.  Chalmers  :  Opinions,  ed.  2,  pp.  337,  338,  339,  340,  341. 


HISTORICAL   COMMENTARY.  203 

No  such  cases  are  extant.  It  is  true  that  there  is  a  case 
in  South  Carolina  in  which  a  colonial  act  was  decided  to  be 
contrary  to  Magna  Charta  and  common  right  and  was  held 
therefore  Ijyso  facto  void :  Bowman  i\  Middleton,  1  Bay, 
254.  This  decision,  however,  was  not  made  by  a  judicial 
tribunal  of  the  colony  but  by  one  of  the  state. 

IS'o.  4. 

Of  the  nature  of  the  exercise  of  the  prerogative^  when  the 
king  declared  in  council  that  a  colonial  act  was  null  and 
void  because  repugnant  to  the  laws  of  England, 

While  an  act  of  a  colonial  legislature  was  null  and  void, 
if  it  were  repugnant  to  the  laws  of  England,  the  question  of 
such  repugnancy  before  the  king  in  council  was  not  a  judi- 
cial one.  It  was  a  legislative  question  and  was  so  decided 
by  the  king  proceeding  in  council  in  his  legislative  capacity. 

That  such  was  and  is  the  English  opinion  is  shown  by  the 
following  passage  on  page  84  of  Bowyer's  Readings  in  the 
Middle  Temple  in  1850 : 

"The  power  which  the  crown  has  of  disallowing  acts 
"j)assed  by  colonial  legislatures,  after  they  have  received 
* '  the  assent  of  the  governour,  and  of  refusing  its  assent  when 
"  they  have  not  received  that  of  the  representative  of  the 
''  crown  in  the  colony,  practically  fulfils  the  purposes  of  the 
''  extraordinary  jurisdiction  of  the  American  supreme  court. 
"  It  has  lately  been  proposed  to  distinguish  by  legislative 
''enactments  between  colonial  and  imperial  matters,  en- 
'' trusting  the  former  only  to  tlie  colonial  legislatures,  and 
''to  erect  a  court  for  the  determination  of  the  validity  of 
"  colonial  laws.  But  the  difficulty  of  defining  the  distinc- 
"tion  has  not  yet  been  overcome." 

The  following  passage  of  Madison's  shows  that  it  was  the 
American  opinion  that  the  king  exercised  his  prerogative 
legislatively  and  not  judicially,  when  he  approved  or  dis- 
approved the  acts  of  colonial  legislatures.  In  it  Madison  is 
alluding  to  certain  letters  of  his  to  Jefferson,  Randolph  and 
Washington',  which  v/ere  written  shortly  before  the  meet- 


204  HISTORICAL   COMMENTART. 

ing  of  the  Framers'  convention  and  contained  a  sketch  of  a 
constitutional  government  of  the  United  States.  He  ob- 
serves :"* 

' '  The  feature,  in  these  letters  which  vested  in  the  gen- 
"eral  authority  a  negative  on  the  laws  of  the  States^  was 
''  suggested  by  the  negative  in  the  head  of  the  British  Em- 
^''pire^  which  prevented  collisions  between  the  parts  and 
"the  whole,  and  between  the  parts  themselves.  It 
"was  supposed  that  the  substitution  of  an  elective  and 
"responsible  authority,  for  an  hereditary  and  irrespon- 
"sible  one,  would  avoid  the  appearance  even  of  a  de- 
"parture  from  republicanism.  But  although  the  subject 
"was  so  viewed  in  the  convention,  and  the  votes  on  it 
"were  more  than  once  equally  divided,  it  was  finally  and 
"justly  abandoned,  as,  apart  from  other  objections,  it  was 
"  not  practicable  among  so  many  States,  increasing  in  num- 
"ber,  and  enacting,  each  of  them,  so  many  laws.  Instead 
"of  the  2)Toposed  negative^  the  objects  of  it  were  left  as 
"finally  provided  for  in  the  constitution." 

These  observations  show  the  received  opinion  of  Madi- 
son's  colleagues  in  the  Framers'  convention  as  to  the  na- 
ture of  the  act  of  prerogative  by  w^hich  the  king  negatived 
a  colonial  act  for  repugnancy  or  other  reason.  The  evi- 
dence thus  shows  that  in  America  as  well  as  in  England 
the  king  was  held  to  proceed  legislatively  and  not  judi- 
cially in  declaring  the  act  of  a  colonial  legislature  to  be 
null  and  void  because  repugnant  to  the  laws  of  England. 
Indeed,  it  is  hardly  possible  that  any  one  will  deny  that 
such  was  the  rule.  But  whether  that  rule  had  exceptions 
is  a  question  which  some  readers  may  think  should  be 
raised  in  an  investigation  such  as  this. 

The  consideration  of  this  latter  question  requires  some 
reference  to  the  modus  procedendi  in  different  classes  of 
cases  before  the  king  in  council.  At  least  three  classes  of 
such  cases  must  be  discriminated.  These  arose  under  a  dis- 
tinction between  the  thirteen  colonies,  which  divided  them 
into  two  kinds  from  a  legislative  point  of  view,  viz.,  those 

*  Gilpin  :  Madison  Papers,  II.  714,  715. 


HISTORICAL   COMMENTARY.  205 

wliicli  transmitted,  and  those  which  did  not  transmit,  the 
acts  of  their  legislatures  to  the  king  in  council  for  his  ap- 
proval or  disapproval.  This  distinction  must  receive  atten- 
tion before  answering  the  above  question. 


No.  5. 

Of  the  colonies  which  transmitted^  and  those  which  did 
not  transmit^  the  acts  of  their  legislatures  to  the  king  in 
council  -^or  his  approval  or  disapproval. 

From  the  point  of  view  of  the  exercise  of  the  prerogative 
now  under  consideration  there  were  two  classes  of  colonies  : 
(1)  those  in  which  it  was  required  that  the  colonial  laws 
should  be  transmitted  to  the  king  in  council :  and  (2)  those 
in  which  such  transmission  was  not  required. 

Nine  of  the  thirteen  colonies  finally  belonged  to  the  first 
class. 

The  charter  of  Connecticut  did  not  require  the  transmis- 
sion of  the  laws.     Neither  did  that  of  Rhode  Island. 

By  the  patent  of  Maryland,  the  proprietary  government 
was  not  required  to  transmit  the  laws  enacted  thereunder. 
For  a  considerable  number  of  years  the  government  of  the 
colony  was  taken  into  the  king's  hands  and  out  of  those  of 
the  lord  proprietor.  During  those  years  a  different  system 
must  have  been  applied.  As  in  other  colonies  immediately 
under  the  government  of  the  king  transmission  must  have 
been  required."^ 

The  colony  of  the  Lower  Counties  upon  Delaware  was  not 
required  to  transmit  the  laws  enacted  by  its  legislature. 
This  assertion  is  based  upon  the  fact  that  no  evidence  has 
been  found  showing  that  any  act  of  that  legislature  was 
ever  transmitted  to  the  king  in  council  and  upon  the  great 

*  See  Bacon's  Laws  of  MaryLind  for  the  acts  of  1692,  June  9th,  cap.  17  ; 
1696,  July  9th,  cap.  18  ;  1706,  April  19th,  cap.  14  ;  1707.  April  15th,  cap.  16, 
and  1708,  December  17th,  cap.  3.  These  acts  were  transmitted  to,  and  disal- 
lowed by,  the  king  in  council.  They  were  enacted  in  the  name  of  the  king. 
Norraatly,  in  Maryland,  the  laws  were  enacted  and  the  writs  ran  in  the  name 
of  the  lord  proprietor. 


206  HISTOKICAL    COMMENTARY. 

improbability  that  any  evidence  to  that  effect  remains  un- 
discovered.'^ 

It  should  be  borne  in  mind  that  a  colony  might  belong  to 
both  classes  for  different  periods  of  its  existence.  This  was 
the  case  with  the  two  Carolinas.  During  the  first  period  of 
their  colonial  existence  they  were  under  proprietary  gov- 
ernment. During  the  second,  they  were  colonial  under  the 
immediate  government  of  the  king.  In  the  former  period 
transmission  was  not  required  :  in  the  latter  it  was. 

In  those  colonies  in  which  the  transmission  of  the  laws 
to  the  king  in  council  was  required,  the  acts  of  the  respect- 
ive legislatures  had  vigour  until  the  king' s  disapx^roval  was 
declared.  Such  disapproval  had  the  effect  of  a  repeal  and 
was  frequently  called  by  that  name.  On  the  other  hand 
the  king's  approval  had  the  eft'ect  of  a  confirmation  and 
was  frequently  called  so.f  After  acts  of  legislation  were 
enacted  in  a  transmitting  colony,  the  regular  procedure  re- 
quired them  to  be  transmitted  within  fixed  terms  to  the 
king  in  council  in  order  there  to  be  passed  upon  by  him  in 
Ms  legislative  capacity  in  the  due  course  of  public  busi- 
ness. This  procedure  was  dilatory.  The  actual  delays  were 
of  much  historical  importance,  but  do  not  require  discus- 
sion here. 

As  to  those  four  colonies,  which  were  not  required  to 
transmit  their  laws  to  the  king  in  council  for  approval  or 
disapproval,  the  procedure  was  different.  If  a  law  repug- 
nant to  the  laws  of  England  was  enacted  in  any  of  those 
colonies,  it  was  void,  just  as  much  as  if  enacted  in  any  of 

*  In  this  matter  I  have  not  relied  upon  any  researches  of  my  own  concern- 
ing the  legislature  of  the  Lower  Coanties  upon  Delaware.  I  have  been  so  for- 
tunate as  to  be  able  to  consult  the  most  erudite  of  our  historical  scholars  in 
matters  of  colonial  legislation,  Mr.  C.  R.  Hildeburn  of  the  Laws  Commission 
of  Pennsylvania.  In  Appendix  No.  3  to  this  Essay,  I  have  in.serted  Mr.  Hilde- 
burn's  opinion  upon  the  state  of  the  evidence  concerning  the  question  whether 
the  Lower  Counties  upon  Delaware  were  a  transmitting  or  a  non-transmitting 
colony. 

I  avail  myself  of  this  opportunity  to  express  my  gratitude  to  Mr.  Hildeburn 
for  his  invaluable  assistance  on  numerous  occasions  in  matters  relating  to  the 
history  of  colonial  legislation  on  both  sides  of  the  Atlantic. 

t  See  Chalmers :  Opinions  :  ed.  2,  pp.  337,  338,  339,  340,  341. 


HISTORICAL   COMMENTARY.  207 

the  other  nine.  The  attention  of  the  king  was  not,  how- 
ever, given  to  it,  as  of  course,  in  the  regular  routine  of  pub- 
lic business  before  him  in  council.  The  royal  attention  was 
called  to  such  act  by  its  being  challenged  on  the  motion  of 
some  interested  party  other  than  the  colony  itself,  in  con- 
nection with  some  accidental  affair  involving  its  validity. 
When  a  colonial  act  was  thus  successfully  impeached  be- 
fore the  privy  council,  the  king  proceeding  in  his  legislative 
capacity  on  his  prerogative  abroad,  decided  it  to  be  repug- 
nant to  the  laws  of  England  and  declared  it  to  be  void  for 
that  reason.     This  was  done  by  an  order  in  council.  "^ 


ISTo.  6. 

Of  tlie  modus  procedendi  in  disapproving  laws  in  three 
different  classes  of  cases  before  the  king  in  council. 

The  two  classes  of  colonies  above  mentioned  gave  rise  to 
three  classes  of  cases,  so  far  as  the  modus  procedendi  in  the 
disapproval  of  colonial  laws  was  concerned.  These  were  as 
follows : 

1.  Cases  in  which  the  king  in  council  had  disapproved,  or 
disallowed,  or  repealed,  or  declared  null  and  void,  the  acts 
of  colonial  legislatures  which  had  been  transmitted  accord- 
ing to  the  colonial  charters  or  other  letters  patent. 

2.  Cases  in  which  the  king  had  done  likewise  concerning 
the  acts  of  colonial  legislatures  wliich  had  not  been  trans- 
mitted as  aforesaid  and  which  had  been  brought  before  the 
royal  attention  in  proceedings  not  judicial. 

In  both  the  foregoing  classes  of  cases  the  king  unquestion- 
ably proceeded  in  his  legislative  capacity  in  so  exercising 
his  prerogative. 

3.  The  third  class  of  cases  consisted  of  those  in  which  a 
colonial  act  was  successfully  challenged  by  the  appellant  in 
an  appeal  to  the  king  in  council  from  the  judicial  courts  of 
a  non-transmitting  colony.  In  such  a  case,  as  the  colony 
had  not  transmitted  the  challenged  law,  the  royal  attention 

*  See  Chalmers  •  Opinions,  ed.  2,  p.  336. 


208  HISTORICAL    COMMENTARY. 

was  for  the  first  time  called  thereto  by  the  appellant  and  so 
in  connection  with  a  judicial  proceeding.  Was  such  a  case 
an  exception  to  the  rule  that  when  the  king  declared  a 
colonial  act  to  be  null  and  void,  his  act  was  a  legislative 
exercise  of  his  prerogative  ?  The  answer  to  this  question 
requires  a  consideration  of  the  great  case  of  Winthrop  v. 
Lechmere. 

ISTo.  7. 

Of  the  case  of  Winthrop  v.  Lechmere^  temp.  George  I. 
and  Oeorge  II, 

This  case  was  an  appeal  from  the  Superior  Court  of  Con- 
necticut to  the  king  in  council.  The  order  in  council  de- 
termining it  in  favour  of  the  appellant  was  dated  February 
15th,  1727-8. 

This  appeal  belonged  to  a  class  of  judicial  cases,  wnich 
was  important  but  not  numerous.  At  the  same  time  such 
appeals  were  familiar  enough  for  an  interesting  and  pecu- 
liar phrase  to  be  used  in  connection  with  them.  In  them 
the  appellants  from  colonial  courts  to  the  king  in  council 
were  said  to  have  '' appealed  home.'"^ 

The  case  of  Winthrop  r).  Lechmere  was  this.f  General 
Wait  Winthrop  of  Boston  in  Massachusetts,  died  intestate 
leaving  a  son  John  Winthrop,  Esq.,  of  New  London,  in 
Connecticut,  and  a  daughter,  Anne,  wife  of  Thomas  Lech- 
mere, merchant,  of  Boston.  The  real  estate  in  Connecticut, 
which  General  Winthrop  had  owned,  was  valuable.  By 
the  colonial  statute  for  settling  intestate  estates,  it  was  in 
this  case  divided  into  three  shares,  two  of  which  went  to  the 
son  and  one  to  the  daughter.  By  this  statute  the  common 
law  right  of  primogeniture  was  abolished  and  the  real  estate 
of  a  decedent  was  divided  equally  among  his  children,  ex- 
cept in  the  case  of  the  eldest  son,  who  was  given  the  pre- 
rogative of  a  double  share. 

*See  appellant's  breviate  or  case  in  the  Appeal  of  Phillips  v.  Savage  in  the 
Proceedings  of  the  Historical  Society  of  Massachusetts  for  1860-2,  pages  66,  67. 

t  See  Public  Records  of  the  Colony  of  Connecticut,  vol.  7,  pp.  571-579  ;  Mas- 
sachusetts Historical  Society  Collections,  Series  6,  vol.  5,  pp.  436-511. 


HISTORICAL   COMMENTARY.  209 

One  of  John  Winthrop'  s  contentions  was  that  this  colo- 
nial statute  was  void,  because  repugnant  or  contrary  to  the 
laws  of  England.  He  invoked  the  charter  of  incorporation 
granted  to  the  colony,  by  which  its  legislature  was  empow- 
ered to  make  only  such  laws  as  should  be  wholesome  and 
reasonable  and  not  contrary  to  the  laws  of  England.  He 
maintained  that  all  other  laws  were  not  warranted  by  the 
charter. 

John  Winthrop  claimed  the  whole  of  his  father's  real 
estate,  as  eldest  son  and  heir  according  to  the  rule  of  the 
English  law.  Mr.  and  Mrs.  Lechmere  disputed  this  claim 
and  contended  that  she  was  entitled  to  one-third  of  the  real 
estate.  Two  series  of  litigations  arose,  one  before  and  the 
other  after  May,  1726.  In  the  litigations  before  that  date 
Mrs.  Lechmere  failed  to  obtain  any  remedy  for  her  rights, 
which  had  certainly  been  violated,  if  the  colonial  statute 
was  valid.  This  failure  was  not  because  the  colonial  courts 
refused  to  obey  that  statute,  but  because  it  was  either  im- 
perfect in  its  remedial  dispositions  or  had  been  erroneously 
interpreted  by  the  judges.  Additional  legislation  was 
deemed  necessary  by  the  Assembly  to  secure  Mrs.  Lechmere 
her  statutory  rights  aforesaid.  This  was  accordingly  pro- 
vided for  by  the  Assembly  in  May,  1726.  A  second  series 
of  litigations  then  ensued,  the  result  being  that  Mr.  and 
Mrs.  Lechmere  were  successful  on  every  point  in  dispute. 
In  these  litigations  the  judicial  acts  and  decisions  of  the 
colonial  courts  were  numerous.  The  following  require 
special  mention,  viz.^  four  sentences  of  the  Superior  Court 
of  the  colony,  the  first  of  June  29th,  1725,  the  second  of 
September  28th,  1725,  the  third  and  fourth  of  March  22d, 
1725-6.  Throughout  the  whole  of  this  second  series  of  liti- 
gations the  colonial  courts  fully  recognized  and  applied  the 
above  mentioned  colonial  statutes  as  good,  binding  and 
valid,  viz.,  the  act  for  the  settlement  of  intestate  estates, 
and  the  act  of  May,  1726,  remedying  the  imperfections  of 
the  former. 

Prom  the  Superior  Court  of  the  colony  John  Winthrop 
"  appealed  home  "  to  the  king  in  council.  His  petition  and 
apx)eal  were  referred  by  an  order  in  council  of 

14  0.  •  >^5??^-;:^^ 


210  HISTORICAL   COMMENTARY. 

1727,  to  the  Lords  of  the  Committee  of  the  Privy  Council 
for  hearing  Appeals  from  the  Plantations.  The  Committee, 
after  hearing  the  parties  tliroiigh  their  legal  counsel,  made 
a  report  on  December  20th,  1727.  This  report  was  favour- 
able to  the  appellant  on  every  point  in  dispute.  His  con- 
tentions as  to  both  the  judicial  acts  and  the  legislative  acts 
in  question  were  fully  sustained.  This  report  was  consid- 
ered by  the  king  when  he  met  his  council  at  a  court  held  on 
February  15th,  1727-8.  By  the  advice  of  the  privy  council, 
he  approved  and  confirmed  the  report  in  every  particular. 

Inter  alia  the  committee  decided  that  the  abovemen- 
tioned  four  judicial  sentences  of  the  colonial  Superior  Court 
ought  to  be  reversed  and  set  aside  by  the  king  and  that  the 
two  acts  of  the  colonial  legislature  aforesaid  ought  to  be 
declared  null  and  void  by  him.  Thus  in  the  same  report 
four  judicial  acts  and  two  legislative  acts  were  condemned. 
It  should  be  observed  that  the  question  of  the  validity  and 
repugnancy  of  the  two  colonial  acts  respectively  was  a  new 
one  before  the  king  in  council,  because  Connecticut  was 
one  of  the  colonies,  which  was  not  required  to  transmit  the 
acts  of  its  legislature  for  approval  or  disapproval. 

The  order  in  council  recites  in  exienso.  the  report  of  the 
committee,  and,  referring  thereto,  proceeds  to  say:  "His 
"Majesty,  taking  the  same  into  his  royal  consideration,  is 
' '  pleased,  with  the  advice  of  his  Privy  Council,  to  apx)rove 
' '  of  the  said  report  and  confirm  the  same  in  every  particu- 
' '  lar  part  tliereof ;  and  pursuant  thereunto,  to  declare,  that 
"the  aforementioned  act,  entituled,  An  Act  for  the  settle- 
"  ment  of  intestate  estates,  is  Null  and  Void  ;  and  the  same 
"is  hereby  accordingly  declared  to  be  null  and  void,  and 
"  of  no  force  or  effect  whatever.  And  his  ]\Iajesty  is  hereby 
"  further  pleased  to  order  that  all  the  aforementioned  sen- 
"tences  of  the  29th  June,  1725,  of  the  28th  September, 
"1725,  and  of  the  22d  March,  1725-6,  and  every  of  them, 

"  be  and  they  are  hereby  reversed  and  set  aside 

"  And  his  Majesty  does  hereby  further  order,  that  the  afore- 
"  mentioned  [other]  sentence  of  the  22d  of  March,  1725-6, 

" be  also  reversed  and  set  aside ; 

"and  that  all  acts  and  proceedings  done  and  had  under  the 


HISTORICAL   COMMENTARY.  211 

*^said  sentences,  all,  every,  or  any  of  them,  or  by  virtue  or 
"pretence  thereof,  be  and  they  are  hereby  discharged  and 
"set  aside,  and  declared  null  and  void.  And  his  Majesty 
"is  further  pleased  to  declare,  that  the  aforementioned  act 
"of  Assembly,  passed  in  May,  1726,  empowering  the  said 
"  Thomas  Lechmere  to  sell  the  said  lands,  is  null  and  void  ; 
"and  also  that  the  said  order  made  by  the  said  superior 
"court,  bearing  date  the  27th  of  September,  1726,  pursuant 

"to  the  said  act  of  Assembly, is  likewise  null 

"  and  void  ;  and  the  said  act  of  Assembly  and  order  of  the 
"said  superior  court  are  accordingly  hereby  declared  null 
"and  void,  and  of  no  force  or  effect  whatever." 


No.  8. 

Whether  the  order  in  council  determining  Winthrop  v. 
Lechmere  was  purely  judicial  or  partly  judicial  and 
partly  legislative. 

The  foregoing  extracts  from  the  order  in  council,  deter- 
mining the  case  of  Winthrop  v.  Lechmere,  show  that  that  act 
of  prerogative  did,  inter  alia^  the  following  tilings : 

It  reversed  and  set  aside  four  judicial  sentences  of  the 
Superior  Court  of  Connecticut ; 

It  declared  null  and  void  one  judicial  order  of  the  same 
court; 

It  declared  null  and  void  two  acts  of  the  legislature  of 
Connecticut. 

It  is  self-evident  that  the  king's  action  concerning  the 
sentences  and  the  order  of  the  court  was  judicial.  So  far 
then  the  order  in  council  was  certainly  a  judicial  act  of  pre- 
rogative. Unless,  therefore,  an  order  in  council  can  be 
partly  judicial  and  partly  legislative,  the  king  exercised 
his  prerogative  judicially  and  not  legislatively,  when  he 
declared  the  two  acts  of  the  colonial  legislature  to  be  null 
and  void.  That  is  to  say,  appeals  like  Winthrop  v.  Lech- 
mere, questioning  colonial  laws  as  well  as  Colonial  judg- 
ments, furnish  exceptions  to  the  rule  that  the  king  ^yq- 


212  HISTORICAL   COMMENTARY. 

ceeded  legislatively  in  declaring  a  colonial  act  to  be  null 
and  void  because  repugnant  to  tlie  laws  of  England. 

If  appeals  like  AYinthrop  v.  Lechmere  furnished  such 
exceptional  cases,  they  are  of  great  imjjortance  for  the  sub- 
ject of  this  Essay.  If  the  king  proceeding  judicially  in 
council  ever  decided  a  challenged  act  of  a  colonial  legisla- 
ture to  be  repugnant  to  the  laws  of  England  and  therefore 
declared  it  to  be  null  and  void,  an  English  model  existed 
in  the  last  century  for  the  American  judicial  competency 
which  is  the  subject  of  this  Essay. 

If,  however,  an  order  in  council  could  be  of  a  mixed  na- 
ture, that  is  to  say,  could  exercise  the  prerogative  legisla- 
tively, judicially  and  executively  at  the  same  time,  then 
\Yinthrop  v.  Lechmere  furnishes,  no  exception  to  the  rule 
that  the  king  proceeded  legislatively  in  declaring  colonial 
acts  to  be  null  and  void  for  repugnancy. 

In  the  writer's  opinion  the  order  in  council  determining 
the  appeal  of  Winthrop  v.  Lechmere  was  actually  of  a 
'^  mixed  nature.  He  deems  it  partly  judicial  and  partly  leg- 
islative. It  was  no  mere  judicial  judgment.  That  part  of 
it  was  judicial,  which  reversed  and  set  aside  the  four  sen- 
tences and  declared  the  order  of  court  to  be  null  and  \oid. 
That  part  of  it  was  legislative,  which  declared  the  two  acts 
of  the  colonial  legislature  to  be  null  and  void. 

The  writer  understands  this  view  to  be  supported  by  au- 
thority. In  an  order  in  council,  dated  April  10th,  1730, 
the  order  in  council  determining  Winthrop  i^.  Lechmere  is 
referred  to.  The  action  therein  taken  concerning  the  Con- 
necticut act  for  settling  intestates'  estates,  is  expressly 
called  ''a  repeal"  of  that  act.  See  the  Talcott  Papers  in 
Collections  of  the  Connecticut  Historical  Society,  vol.  4, 
page  201. 

An  order  in  council  was  an  act  of  prerogative.  The  pre- 
rogative was  not  divided  into  departments,  like  an  Amer- 
ican government  under  a  written  constitution.  It  could  do 
things  which  required  the  acts  of  two  or  more  departments 
under  such  an  American  government.  Whether  an  order 
in  council  was  legislative,  judicial,  executive  or  mixed, 
could  only  be  determined  by  inspecting  its  text  and  consid- 


HISTORICAL   COMMENTAHY.  213 

ering  liow  the  prerogative  was  exercised  by  the  king  in  mak- 
ing it. 

If  the  writer  err  in  this  view,  then  the  important  conse- 
quence follows  that  the  king  proceeded  judicially  in  declar- 
ing the  said  two  acts  of  legislation  to  be  null  and  void. 

In  order  that  the  learned  reader  may  judge  for  himself  in 
this  matter  the  order  in  council  has  been  inserted  in  full  in 
Appendix  No.  4.  It  recites  in  extenso  the  report  of  the 
Committee  on  appeals  from  the  plantations.  Other  sources 
of  information  concerning  Winthrop  v.  Lechmere  are  re- 
ferred to  in  that  Appendix.  The  joint  opinion  of  the  At- 
torney general  and  Solicitor  general,  which  is  printed  ante 
page   199,  relates  to  the  case. 

No.  9.  •     ^ 

Of  certain  appeals  to  the  Jcing  in  council  from  CaJnada 

since  1867. 

In  connection  with  this  chapter,  it  is  well  to  mention  cases 
arising  under  the  present  constitution  of  Canada,  which  in- 
volve the  question  whether  a  colonial  law  be  or  be  not  con- 
stitutional. Such  cases  since  1867  are  judicially  determined 
in  last  instance  by  the  queen  in  council.  The  present  con- 
stitution of  Canada  is  '/  the  British  North  American  act, 
"1867."  It  is  a  statute  enacted  by  the  British  parliament 
at  the  wish  of  the  colonies  now  composing  the  Dominion  of 
Canada.  It  is  both  imperial  legislation  and  a  colonial  con- 
stitution. Under  it,  the  courts  of  the  dominion  and  of  the 
several  provinces  are  competent  to  pronounce  upon  the  con- 
stitutionality of  laws  enacted  by  the  general  and  the  pro- 
vincial legislatures.  In  such  cases  the  appeal  in  final  in- 
stance is  to  the  queen  in  council.  In  determining  such  ap- 
peals the  queen  certainly  proceeds  in  her  judicial  capacity. 
The  queen  declares  judicially  whether  the  questioned  legis- 
lation be  constitutional  or  unconstitutional  and  valid  or 
void  accordingly. 

For  further  information  on  this  interesting  branch  of 
Canadian  constitutional  law,  see  Appendix  No.  5  to  this 
Essay. 


214  HISTOKTCAL   COMMENTARY.  ^' 


CHAPTER  XXI. 
Conclusion  of  tlie  inTestig^ation  of  tlie  Hng-lisli  la^Wi 


It  has  been  previously  remarked  that  the  English  consti- 
tution is  not  a  written  but  a  consuetudinary  constitution 
and  one  of  great  antiquity.  Therefore  it  was  surmised  that 
what  was  the  law  on  a  given  matter  at  one  period  might  not 
be  the  law  at  another.  This  surmise  may  now  be  changed 
into  a  positive  assertion  as  to  the  matter  in  question.  The 
foregoing  investigation  shows  that  in  the  process  of  time 
the  English  constitution  has  varied  upon  the  law  of  legisla- 
tion. It  must  especially  be  recollected  that  when  the  Roman 
church  was  established  in  England,  and  power  and  jurisdic- 
tion were  partitioned  between  pope  and  king,  the  legislative 
power  of  the  state  was  fundamentally  different  from  what 
it  became  after  the  Reformation. 

It  is  now  contended  that  the  foregoing  discussion  of  the 
relation  of  the  judiciary  to  acts  of  parliament  in  England 
supports  the  truth  of  the  following  propositions : 

(1).  When  George  III.  ascended  the  throne  of  Great 
Britain  and  the  American  colonies,  it  was  the  settled  law  of 
the  British  constitution,  that  no  judicial  court  could  decide 
an  act  of  parliament  to  be  contrary  to  any  superior  rule  of 
binding  right.  Then  as  now  all  judges  were  bound  by  all 
statutes  in  all  cases  by  the  clear  and  clearly  expressed  mean- 
ing of  parliament.  'No  court  could  therefore  then  question 
the  validity  of  an  act  of  parliament  upon  any  such  ground. 

(2).  In  England  before  the  Reformation  acts  of  parlia- 
ment could  not  legislate  contrary  to  ecclesiastical  right  and 


HISTOEICAL   COMMENTARY.  215 

liberty  in  any  case  affecting  the  church  in  things  purely 
spiritual  and  in  some  cases  affecting  it  in  spiritual  things 
mixed  with  the  temporalty.  In  such  cases  the  Canon  law 
was  in  actual  vigour  in  England  and  there  was  no  conflict 
between  the  law  of  the  church  and  the  law  of  the  land. 
Acts  of  parliament  contrary  to  ecclesiastical  right  and  lib- 
erty in  these  cases  did  not  bind  either  the  clergy  or  the 
laity.     Neither  were  the  king's  judges  bound  thereby. 

(3).  Shortly  before  the  revolution  of  1688,  an  English 
court  held  a  statute  void  because  judicially  ascertained  and 
decided  to  be  contrary  to  the  king's  prerogative.  The  best 
opinion  is  that  this  decision  was  error  when  made.  If  it 
was  not  then  error,  the  law  was  changed  by  the  revolution 
of  1688.  Since  that  date  any  such  decision  must  certainly 
be  error. 

(4).  At  a  time  subsequent  to  the  Reformation  and  ante- 
cedent to  the  Interregnum,  Lord  Chief  Justice  Coke  en- 
deavoured to  develop  a  doctrine  by  which  the  judiciary 
would  have  a  certain  competency  of  criticising  statutes  and 
would  be  competent  to  decide  the  same  to  be  contrary  to 
common  right  and  reason,  which  statutes  when  so  decided 
would  not  be  binding  upon  the  judges  but  must  by  them 
be  held  null.  This  endeavour  of  Coke's  failed  to  succeed  in 
England.  It  had,  however,  an  interesting  effect  in  America, 
if  the  case  of  Trevett  v,  Weeden  be  deemed  from  its  early 
date  to  be  the  most  influential  American  example  of  a  judi- 
cial competency  to  criticise  legislation  as  unconstitutional. 

It  is  further  contended  that  the  foregoing  discussion  sup- 
ports the  truth  of  the  following  : 

Legislation  by  act  of  prerogative,  made  by  the  king  in 
council  and  not  in  parliament,  was  of  the  greatest  import- 
ance in  and  for  the  American  colonies.  Both  before  and 
after  the  revolution  of  1688,  it  was  an  unquestioned  exercise 
of  his  prerogative  abroad  for  the  king  so  to  legislate.  While 
the  scope  of  such  legislation  was  wide,  the  law  limited  that 
scope.  It  was  a  judicial  question  whether  an  act  of  such 
legislation  was  or  was  not  lawful  (or  constitutional)  and 
valid  or  void  accordingly.  This  is  proved  by  the  case  of 
Campbell  v.  Hall,  reviewed  on  pages  190-196  ante. 


216  HISTORICAL   COMMENTARY. 


CHAPTER  XXII. 


Conclusion  of  tlie  inirestig-ation  of  foreigfn  la^ws  made 
in  Part  I.  of  tlie  Historical  Commentary. 


The  foregoing  investigation  of  foreign  laws  shows  that 
when  Americans  invented  written  constitutions,  they  did 
not  create  an  unprecedented  novelty  in  framing  them  upon 
the  principle  that  judiciaries  might  decide  questioned  legis- 
lation to  be  contrariant  to  a  constitutional  or  other  rule  of 
right  and  hold  it  therefore  void  :  that  is  to  say,  that  a  writ- 
ten constitution  might  without  unprecedented  novelty  make 
it  a  judicial  and  not  an  extrajudicial  question  whether  such 
legislation  was  so  contrariant  or  not.  On  the  contrary, 
there  were  then  important  precedents  in  Europe  for  such 
an  institution.  Legal  history  makes  it  clear  that  long  be- 
fore American  independence  there  were  in  Europe  unw^rit- 
ten  systems  of  public  law,  according  to  which  legislation 
might  sometimes  be  decided  to  be  contrariant  to  a  binding 
riglit  of  superior  strength  to  the  legislative  power  exer- 
cised. Under  them,  whether  challenged  legislation  was  ac- 
cordant or  contrariant  to  binding  right,  and  whether  legis- 
lators had  or  had  not  proceeded  secundum  jus  potestatis 
suae^  might  sometimes  be  judicial  and  not  extrajudicial 
questions. 

The  examination  of  the  older  English  law,  the  English 
law  of  the  prerogative  abroad,  the  older  French  law,  the 
older  German  law,  the  Roman  law,  and  the  Canon  law  sup- 
port the  propositions  just  laid  down. 

Actual  cases  from  the  older  French  law  were  adduced. 
Two  of  these  were  the  regency  cases  in  the  reigns  of  Lewis 


HISTORICAL   COMMENTARY.  217 

XIY.  and  Lewis  XV.,  that  is  to  say,  purely  temporal  cases 
in  which  a  temporal  court  decided  temporal  legislation  to 
be  contrary  to  binding  right  and  held  it  therefore  void. 
Another  class  of  cases  related  to  the  division  of  powers  be- 
tween church  and  state  in  France.  In  them  a  temporal 
court  for  .fifty  years  repelled  royal  legislation  concerning 
ecclesiastical  affairs  as  wrongful  and  invalid.  In  the  end, 
this  court  failed,  but  it  did  not  overrule  itself.  It  yielded 
only  to  vis  major.  The  king  compelled  it  to  register  the 
concordate  of  1517,  but  the  registration  was  made  under 
protest. 

In  the  older  German  law,  the  example  of  the  court  of  the 
Imperial  Chamber  was  adduced.  It  was  shown,  on  the  au- 
thority of  Bluntschli,  that  that  court  provided  for  the  legis- 
lative authorities  of  the  several  states  of  the  Old  German 
Empire  being  restricted  within  certain  limits  by  judicial 
means. 

The  investigation  of  the  Roman  law  of  legislative  re- 
scripts in  Justinian's  time  showed  that  judges  could  decide 
whether  such  a  rescript  had  or  had  not  been  made  accord- 
ing to  the  law  of  such  legislation  and  must  reject  the  same 
when  ascertained  by  them  to  be  contrary  thereto.  The  em- 
peror laid  down  i\iQ  jus  potestatis  suae  as  legislator,  and 
made  it  obligatory  upon  his  judges  to  apply  it.  He  had 
no  idea  that  the  deus  ex  machina  of  his  J3lenitude  of  power 
should  be  dragged  into  every  case  of  private  legislation. 

Justinian's  principles  were  adoj^ted  by  the  Canonists. 
This  is  shown  by  the  case  of  the  Bolognese  mill  in  Chapter 
12,  No.  4.  In  it  two  acts  of  temporal  legislation  made  by 
two  popes,  as  temporal  princes,  were  decided  not  good  and 
were  rejected  by  the  court  of  the  Rota  Romana.  Although 
that  court  was  an  ecclesiastical  one,  it  had  a  certain  tem- 
poral jurisdiction  in  Bolognese  and  other  cases.  As  the 
case  was  a  purely  temporal  one,  it  does  more  than  show  the 
doctrines  of  the  Canonists.  It  may  be  held  also  to  show 
the  do(;trines  of  the  modern  Civil  law  on  the  continent  of 
Europe  before  the  end  of  the  last  century,  that  is  to  say,  at 
a  time  when  private  legislation  was  made  by  the  rescripts  of 
absolute  princes  and  not  by  acts  of  assemblies  or  parliaments. 


218  HISTORICAL    COMMENTARY. 

The  Canon  law,  in  cases  affecting  the  division  of  powers 
between  church  and  state,  furnishes  the  most  important  of 
the  results  ascertained  by  this  investigation.  In  No.  1  of 
Chapter  12,  these  results  are  carefully  stated  and  need  not 
be  repeated. 

The  important  results  ascertained  by  the  investigation  of 
the  English  law  are  stated  in  the  previous  chapter  and  need 
not  be  repeated. 

Part  II.  of  this  Historical  Commentary  relates  to  Ameri- 
can laws  in  the  same  way  that  Part  I.  does  to  foreign  laws. 
Conclusions  relating  to  the  subject  of  this  Essay,  which  are 
drawn  from  a  consideration  of  both  Parts,  will  be  found  in 
the  final  chapter  of  Part  11.^ 

^  It  will  be  observed  that  no  mention  has  been  made  of  the  office  of  the 
Justice  of  Aragon  in  the  foregoing  investigation  of  foreign  laws.  This  omis- 
sion is  not  due  to  inadvertence.  After  the  able  and  learned  discussion  of  this 
ofl&ce  of  the  Justice  of  Aragon  by  Prescott,  it  is  not  an  easy  task  to  add  any 
thing  important  to  what  is  already  written  in  English.  The  writer  is  not 
now  prepared  to  attempt  to  do  so  nor  does  he  now  think  that  the  attempt  is 
.  actually  necessary,  as  far  as  the  subject  of  his  Essay  is  concerned.  The  fol- 
lowing references  to  the  Justice  of  Aragon  have  been  consulted  :  Dickinson's 
remarks  in  the  Framers'  convention  in  5  Elliott's  Debates  429  ;  Prescott's  Fer- 
dinand and  Isabella,  pages  civ  et  seq.  ;  Sergeant's  Life  of  Lieber,  384,  385  ;  C. 
W.  F,  Breyer  de  Justitia  Aragonum,  (Jena,  1800)  ;  Ados  de  Cortes  del  Reyno 
de  Aragon,  (Saragossa,  1664),  folios  1,  5,  54,  55,  58,  59,  60  ;  and  Article  on 
Aragon  in  Ersch  and  Grueber. 


HISTORICAL   COMMENTARY.  219 


PART   II. 

Investigation  of  the  laws  of  certain  of  the  states  on 
the  relation  of  judicial  power  to  unconstitutional 
legislation  before  and  during  the  confederation. 

The  next  branch  of  this  investigation  will  be  purely  Ameri- 
can and  will  be  conhned  to  the  time  between  the  declaring 
of  independence  and  the  writing  of  the  constitution.  It 
will  be  concerned  with  the  laws  of  certain  of  the  old  states 
and  especially  with  the  laws  of  New  York,  Rhode  Island 
and  North  Carolina.  The  judicial  annals  of  those  states 
are  of  especial  importance  to  the  subject  of  this  Essay.  In 
each  a  great  historical  case  was  decided,  which  here  re- 
quires particular  attention. 


CHAPTER  XXIII. 


Of  the  states  in  wliich  the  judiciary  claimed  to  be 
competent  to  decide  legfislation  to  he  constitutional 
or  unconstitutional,  either  during:  or  before  the 
confederation. 


On  June  6th,  1787,  Gerry  said  in  the  Framers  convention : 
''In  some  of  the  states  the  judges  had  actually  set  aside 
laws,  as  being  against  the  constitution.""^ 


*  5  Elliot's  Debates,  151. 


220  HISTORICAL   COMMENTARY. 

The  purpose  of  this  chapter  is  to  ascertain,  as  far  as  pos- 
sible, what  cases  Gerry  alluded  to.  It  is  possible,  indeed, 
that  the  knowledge  of  some  of  his  cases  is  lost  beyond 
recovery. 

One  of  the  two  most  important  cases  for  Gerry's  purposes 
may  not  have  been  known  to  him  when  he  spoke.  This  was 
Bayard  v.  Singleton,  which  was  decided  in  North  Carolina 
so  late  in  May  that  the  news  of  the  decision  may  not  have 
reached  Philadelphia  on  June  6th. 

In  1885  a  learned  and  important  paper  was  published  by 
Mr.  Meigs  of  Philadelphia  on  ' '  the  Relation  of  the  Judici- 
"arytothe  Constitution."*  Although  covering  less  than 
thirty  pages,  it  is  peculiarly  rich  in  materials  obtained  by 
historical  research.  They  belong  both  to  the  time  before 
and  that  after  the  writing  of  the  constitution.  The  present 
investigation  is  not  concerned  with  the  researches  connected 
with  the  latter  period. 

Seven  cases  in  five  states  have  been  presented  by  Mr. 
Meigs,  which  require  discussion  in  this  chapter.  They  are 
all  older  than  the  U.  S.  constitution.  Two  of  these  are,  of 
course,  the  well  known  historical  cases  of  Trevett  v.  Weeden 
in  Rhode  Island,  and  Bayard  v.  Singleton  in  North  Carolina. 
Three  cases  belong  to  Virginia,  one  to  New  Jersey  and  one 
to  Massachusetts.  These  seven  cases  will  now  be  enum- 
erated in  chronological  order  with  proper  observations. 

1778,  Virginia.  Case  of  Josiah  Philips.  In  May,  1778, 
Philips  was  attainted  by  a  bill  of  attainder  passed  by  the 
Assembly  of  Virginia.  According  to  this  act  he  was  guilty 
of  devastating  and  marauding  within  the  state.  In  the 
autumn  of  the  same  year,  he  was  captured,  indicted,  tried 
and  convicted  of  highway  robbery.  The  act  of  attainder 
was  not  enforced  or  acted  upon  in  anyway.  "  Unfortu- 
"nately,"  says  Mr.  Meigs,  "it  seems  now  impossible  to  as- 
"  certain  whether  this  was  the  voluntary  action  of  the  at- 
"torney  general,  as  stated  by  Girardin,t  or  whether  the 
"court  declined  to  recognize  the  act  and  directed  the  pris- 

*  American  Law  Review  for  March   and  April  1885,  pages  177-203:    On  the 
Relation  of  the  Judiciary  to  the  Constitution,  by  William  M.  Meigs, 
t  Bulk's  History  of  Virginia,  IV.  305,  306. 


HISTORICAL   COMMENTARY.  221 

*'  oner  to  be  tried,  as  is  intimated  by  Prof.  Tucker.^  If  the 
"latter,  the  case  is  undoubtedly  the  first  of  the  kind  in  the 
"country." 

1782,  Virginia.  Commonwealth  v.  Caton,  Hopkins  and 
Lamb,  4  CalFs  Reports,  135.  The  prisoners  had  been  con- 
victed of  treason  under  the  act  concerning  treason  passed  by 
the  legislature  in  1776.  This  act  deprived  the  executive  of 
the  power  of  granting  pardon  in  cases  of  treason.  In  June 
1782,  a  resolution  pardoning  the  prisoners  was  adopted  by 
the  house  of  delegates  and  rejected  by  the  senate.  The  fol- 
lowing October,  the  attorney  general  moved  that  execution 
of  the  judgment  might  be  awarded.  The  prisoners  pleaded 
the  resolution  of  the  house  of  delegates  as  a  good  pardon, 
claiming  that  that  house  had  power  to  pardon  in  cases  of 
treason  and  impeachment.  The  attorney  general  denied  the 
validity  of  the  resolution  as  a  pardon,  because  the  senate 
had  not  concurred  in  it.  "The  general  court,"  says  the  re- 
porter, "adjourned  the  case,  for  novelty  and  difficulty,  to 
"the  court  of  appeals." 

The  judges  of  the  court  of  appeals  were  of  opinion  that 
the  treason  act  of  1776  was  not  an  infringement  of  the  con- 
stitution. It  was  decided  that  the  pardon  by  resolution  of 
the  house  of  delegates,  which  had  been  pleaded  by  the  pris- 
oners, was  invalid.  On  page  20  of  the  report  it  is  said : 
'^  Chancellor  Blair  and  the  rest  of  the  judges  were  of  opinion, 
"that  the  court  had  power  to  declare  any  resolution  or  act 
' '  of  the  legislature,  or  of  either  branch  of  it,  to  be  unconsti- 
"tutional  and  void." 

The  reporter  adds  in  a  IS".  B. :  "It  is  said,  that  this  was 
"the  first  case  in  the  United  States,  where  the  question  rel- 
"ativeto  the  nullity  of.  an  unconstitutional  law  was  ever 
"discussed  before  a  judicial  tribunal." 

It  should  be  observed  that  in  this  case  no  law  was  decided 
unconstitutional.  A  resolution  of  one  house  was  declared 
a  nullity  because  the  other  had  not  concurred.  The  only 
law  questioned  was  the  treason  act,  the  constitutionality  of 
which  was  affirmed  by  the  judges. 

*  Tucker's  Blackstone,  Appendix,  Vol.  I,  p.  293. 


222  HISTORICAL   COMMENTARY. 

1786,  Rhode  Island.  Trevett  v.  Weeden.  This  case  is 
discussed  at  length  in  Chapter  25,  post. 

1786?  or  1787?  New  Jersey.  Holmes  ?).  Walton.  This 
case  "is  said  to  have  decided  that  a  provision  of  one  of  the 
' '  seizure  acts  for  the  trial  of  certain  cases  by  a  jury  of  six  was 
"unconstitutional;  but,  further  than  this,  we  have  been 
"  able  to  discover  nothing  ;  both  searches  and  inquiries  have 
"been  in  vain."  Mr.  Meigs  adds  that  it  is  not  clear  when 
the  case  was  decided,  except  that  it  was  between  1779  and 
1789  when  Judge  Brearly  was  Chief  Justice. 

Mr.  Meigs  is  inclined  to  think  that  the  nature  of  the  case 
indicates  its  date  to  be  not  long  after  the  close  of  the  Revo- 
lutionary war.  The  writer  conjectures  that  the  latter  part 
of  1786  or  the  earlier  part  of  1787  had  best  be  taken  as  the 
date  of  the  decision  of  the  case.  It  is  most  prudent  to  as- 
sume that  it  was  one  of  the  cases  alluded  to  by  Gferry  on 
June  6th,  1787.  On  the  other  hand,  the  conjecture  that  the 
case  was  decided  after  Trevett  v.  Weeden  seems  to  be  the 
safest.  These  considerations  result  in  a  period  covering  the 
latter  part  of  1786  and  the  earlier  part  of  1787. 

Holmes  v,  Walton  is  referred  to  in  the  State  'o.  Parkhurst, 
4  Halstead,  444. 

1786  ?  or  1787  ?  Massachusetts.  Anonymous  case.  It  is 
mentioned  in  a  letter  of  J.  B.  Cutting  to  T.  Jefferson,  dated 
11  July,  1788.  Cutting  says  that  this  case  "occurred  in 
"Massachusetts  where,  when  the  legislature  trespassed 
"upon  a  barrier  of  the  constitution,  the  judges  of  the  Su- 
"  preme  Court  solemnly  determined  that  the  statute  was  un- 
"  constitutional.  In  the  very  next  session,  there  was  a 
"formal  and  unanimous  repeal  of  the  law,  which  was  per- 
' '  haps  not  necessary. ' ' 

Mr.  Meigs  observes  that  he  has  been  unable  to  discover 
any  thing  more  concerning  this  case,  than  what  is  said  by 
Cutting  in  his  letter.  For  that  letter,  see  Bancroft's  His- 
tory of  the  Constitution,  II.  473.  The  same  date  is  assigned 
to  this  as  to  the  previous  case  and  for  the  same  reasons. 

1787,  May.  North  Carolina.  Bayard  v.  Singleton.  This 
case  is  discussed  at  length  in  Chapter  26,  post.  It  is  there 
shown  that  the  constitutional  decision  in  the  case  was  made 


HISTORICAL   COMMENTARY.  223 

at  Newbern  so  late  in  May  that  Gerry  may  not  have  known 
of  it  when  he  made  his  speech  on  June  6th.  The  decision 
must,  however,  have  been  known  in  Philadelphia  soon  after 
that  date. 

As  has  been  intimated  above,  the  loss  of  documents  may 
have  destroyed  the  knowledge  of  some  of  the  cases  known 
to  Gerry.  Thanks  to  Mr.  Meigs,  however,  a  satisfactory 
answer  has  been  given  to  the  question  to  which  this  chap- 
ter is  devoted. 


CHAPTER  XXiy. 


Of  tlie  la^w  of  ISew  York  and  of  ttie  case  of  Rutsfers 
V,  ^^Vadditigfton. 


The  date  of  this  case  was  1784,  on  August  27th  of  which 
year  the  judgment  was  delivered. 

Although  the  suit  was  begun  and  ended  in  the  Mayor's 
Court  of  the  City  of  New  York,  the  inferiority  of  the  juris- 
diction did  not  prevent  the  decision  from  being  regarded  as 
a  matter  of  great  federal  importance  throughout  the  United 
States.  Tlie  waiter  of  the  elaborate  and  carefully  i^ondered 
opinion  of  the  court  was  James  Duane,  well  known  as  a 
lawyer  and  political  leader,  who  had  been  selected  for 
mayor  at  the  critical  time  following  the  evacuation  of  the 
city.  Upon  the  fate  of  this  suit  depended  many  other  like 
litigations.  It  was  elaborately  argued  on  both  sides. 
Among  the  counsel  were  the  attorney  general  and  Hamil- 
ton, the  former  for  the  plaintiff  and  the  latter  for  the  de- 
fendant. It  was  generally  feared  that  a  conflict  between  a 
recent  statute  of  the  state  and  the  recent  treaty  of  peace 
would  result,  and  that  one  or  other  must  give  way.     If  a 


224  HISTORICAL   COMMETsTAKY. 

federal  conflict  should  arise  between  the  union  and  the 
state  /concerning  the  execution  of  the  treaty  of  peace  as  a 
consequence  of  the  litigation,  not  only  private  suitors,  but 
the  state  of  New  York  and  the  United  States  would  be 
gravely  affected  by  the  decision  of  the  court. 

Such  a  conflict  the  court  strove  to  avoid.  It  held  that  if 
the  statute  were  properly  interpreted,  no  conflict  could 
arise  between  it  and  the  law  of  nations,  and  consequently 
that  a  conflict  between  the  statute  and  the  treaty  was  out 
of  all  question.  To  understand  the  statute  otherwise  would 
be  reading  it  according  to  a  literalness  which  killed  not 
only  public  rights  but  also  certain  most  just  rights  of  indi- 
viduals. Thus  by  interpretation  the  court  succeeded  to  its 
own  satisfaction  in  avoiding  a  federal  crisis.  It  did  not  do 
so,  however,  to  the  satisfaction  of  the  House  of  Assembly, 
which  at  its  next  session  passed  resolutions  condemning 
the  decision.  "^ 

While  the  court  did  not  directly  pass  upon  the  nature  of 
conflicts  between  state  statutes  and  the  state  constitution, 
it  felt  compelled  to  lay  down  the  law  of  legislation  in  terms 
fully  securing  the  supremacy  of  the  legislature  and  the  sub- 
ordination of  the  judiciary.  If  its  exposition  of  the  law 
was  correct,  it  was  certainly  a  necessary  consequence  that 
no  court  could  hold  any  statute  void,  because  judicially  as- 
certained by  it  to  be  unconstitutional. 

A  contemporary  report  of  the  case  of  Rutgers  v.  Wad- 
dington  was  published.  It  has  been  the  principal  source 
of  the  information  in  the  account  following.  It  is  entitled  : 
Arguments  and  Judgments  of  the  Mayor's  Court  of  the 
City  of  New  York  in  a  cause  between  Elizabeth  Eutgers 
and  Joshua  Waddington :  New  York,  printed  by  Samuel 
Loudon,  1784.  t 

In  Rutgers  v.  Waddington,  the  action  was  one  of  tres- 
pass brought  upon  a  statute  of  New  York,  dated  March  17th, 

*  Dawson,  page  xlv. 

t  The  above  report  is  reprinted  in  facsimile  in  the  following  :  The  Case  of 
Elizabeth  Rutgers  i^ersus  Joshua  Waddington  with  an  historical  introduction 
by  Henry  B.  Dawson,  Morrisania,  1866.  Upon  the  case  see  also  Alexander 
Hamilton's  letter,  dated  April  19th,  1792,  in  the  American  State  Papers,  vol. 
I,  p.  232 ;  J.  C.  Hamilton's  Republic,  III.  11-21. 


HISTORICAL   COMMENTARY.  225 

1783,  for  the  occupation  of  the  plaintiff's  brewhouse  and 
malthouse  in  the  city  of  New  York  during  the  military  pos- 
session of  that  city  by  the  British  army."^ 

On  June  10th,  1778,  the  commissary  general  of  the  British 
army  took  possession  of  the  two  houses  by  virtue  of  au- 
thority from  his  commander-in-chief.  From  Sei)tember 
28th,  1778,  to  April  30th,  1780,  the  defendant  occupied  the 
property  under  a  license  and  permission  from  the  commis- 
sary general.  From  the  last  date  to  March  17th,  1783,  the 
defendant's  occupation  was  under  a  license  and  permission 
of  the  said  commander-in-chief  himself  at  a  rent  of  £150 
per  annum,  f 

These  military  orders  were  pleaded  by  the  defendant  as 
justifications  for  his  occupancy  during  the  two  said  i^eriods 
respectively.  The  defendant  further  pleaded  in  bar  of  any 
action  brought  under  the  statute,  that  by  the  treaty  of 
peace  all  right  or  claim  which  British  subjects  or  American 
citizens  might  otherwise  have  had  to  any  retribution  or  in- 
demnity for  things  done  in  consequence  of  the  war,  or  in 
relation  thereto,  were  relinquished,  renounced  and  re- 
leased. :t 

To  this  the  plaintiff  replied  that  the  statute  provided, 
inter  alia^  that  no  defendant  should  be  admitted  to  plead 
any  military  order  or  command  of  the  enemy  in  justifica- 
tion of  any  such  occupation  of  property  as  that  in  ques- 
tion. § 

As  to  the  defendant' s  plea  concerning  the  first  period  of 
his  occupancy,  the  court  decided  that  the  order  of  the  com- 
missary general  was  unlawful,  because  he  had  by  the  law 
of  nations  no  right  to  make  it,  and  furthermore  that  the 
occupancy  thereunder  had  no  relation  to  the  war.  ||  As  to 
the  plea  concerning  the  second  period,  the  court  decided 
that  the  order  of  the  commander-in-chief  was  lawful  ac- 
cording to  the  law  of  nations,  he  having  thereunder  the 


*  Pamphlet  Report,  pp.  1,  5  f<  aeq. 

t  Same,  p.  9. 

%  Same,  pp.  Id  et  seq. 

gSame,  pp.  \\  et  seq.,  37. 

II  Same,  pp.  18,  19,  20. 

16  C. 


226  HISTORICAL   COMMENTARY. 

right  to  raise  military  contributions  by  renting  the  property 
to  the  defendant  at  £150  per  annum  ^ 

As  to  the  defendant's  plea  concerning  the  treaty  of  peace, 
it  was  decided  that  the  only  benefit  therefrom,  concerning 
which  he  could  raise  a  question  before  the  court,  was  an 
implied,  and  not  an  express,  amnesty.  The  only  express 
indemnity  found  in  the  treaty  had  relation  to  cases  plainly 
and  certainly  different  from  that  before  the  court  f  The 
implied  amnesty  claimed  by  the  plaintiff  was  ''made  out 
''by  reasoning  from  the  law  of  nations  to  the  treaty":]: 
The  occupancy  of  the  property  during  the  first  period 
under  the'  unlawful  order  of  the  commissary  general  had  no 
relation  to  the  war,  and  no  amnesty  implied  by  the  law  of 
nations  upon  the  fact  of  the  treaty  making  a  peace,  covered 
any  wrongful  acts  that  had  no  relation  to  the  war. 

As  has  been  said,  the  second  period  of  the  occupancy,  or 
that  under  the  order  of  the  commander-in-chief,  was  decided 
to  be  a  thing  having  a  relation  to  the  war.  This,  however, 
made  no  conflict  between  the  treaty  and  the  statute.  The 
only  conflict,  of  which  there  could  be  any  question,  was  one 
between  the  statute  and  the  law  of  nations.  To  the  defend- 
ant's pleading  the  military  order  of  the  British  commander- 
in-chief,  the  plaintiff  had  answered  that  the  statute  pro- 
hibited the  military  orders  of  the  enemy  from  being  pleaded 
against  any  action  brought  under  it^_  She  had  previously 
pleaded  that  the  statute  comprehended  in  terms  her  whole 
case  and  gave  the  remedy  demanded.  All  this  was  true,  if 
the  statute  was  to  be  taken  according  to  the  full  latitude  of 
its  language  and  according  to  a  rigorously  literal  meaning 
which  conflicted  with  the  law  of  nations.  Such  literal  mean- 
ing could  not,  however,  be  the  true  meaning,  unless  the 
statute  repealed  so  much  of  the  law  of  nations  as  might  con- 
flict with  itself.  It  was,  says  the  court,  a  much  debated 
question  in  the  argument,  "whether  the  courts  of  justice 
"  ought  to  be  governed  by  the  statute,  where  it  clearly  mil- 
' '  itated  against  the  law  of  nations.     Here  it  is  material  to 

*  Same,  pp.  30,  36. 
t  Same,  p.  37. 
J  Same,  p.  44. 


HISTORICAL   COMMENTARY.  227 

''observe  that  the  description  of  persons,  who  are  subject 
*'  to  be  sued  by  this  statute  is  general ;  extending  to  all  who 
'*  occupied  or  injured  the  real  or  personal  estate  of  the 
''exiles,  within  the  power  of  the  enemy.  The  counsel  for 
"the  defendant,  by  stating  a  number  of  pointed  cases, 
"shewed  clearly,  from  the  nature  of  things,  that  the  statute 
"must  admit  of  exceptions.     Mr.  Attorney  General,  one  of 

"the  counsel  for  the  plaintiff, admitted  that 

"many  cases  may  be  out  of  the  statute,  though  the  plain- 
"  tiff's  is  not  of  the  number.^ 

"Thus  then,  it  seems  to  be  agreed,  on  both  sides,  that 
"the  provision  in  the  statute,  being  general,  can  not  ex- 
"  tend  to  all  cases  :  and  must  therefore  receive  a  reasonable 
"interpretation  according  to  the  intention  and  not  according 
"to  the  latitude  of  expression  of  the  legislature  :  It  follows 
"as  a  necessary  consequence,  that  the  interpretation  is  the 
"  province  of  the  court,  and,  however  difficult  the  task,  that 
"we  are  bound  to  perform it."t 

After  due  consideration  the  court  came  to  the  following 
conclusions  :  Properly  interpreted,  the  statute  contained 
nothing  repugnant  to  any  thing  in  the  treaty  of  peace: 
properly  interpreted,  it  contained  nothing  repealing  any 
part  of  the  law  of  nations.  Consequently  it  could  contain 
no  provisions,  with  which  the  subsequent  treaty  of  peace 
conflicted,  on  the  ground  that  they  repealed  some  part  of 
the  law  of  nations. 

The  court  observed : 

"The  repeal  of  the  law  of  nations,  or  any  interference 
"with  it,  could  not  have  been  in  contemplation,  in  our 
"opinion,  when  the  legislature  passed  this  statute  ;  and  we 
"think  ourselves  bound  to  exempt  that  law  from  its  opera- 
"tion:  First,  because  there  is  no  mention  of  the  law  of 
"  nations,  nor  the  most  remote  allusion  to  it,  throughout  the 
"  whole  statute  :  Secondly,  because  it  is  a  subject  of  the 
"highest  national  concern  and  of  too  much  moment  to  have 

*  Same,  pp.  39,  40. 
t  Same,  p.  40, 


228  HISTORICAL   COMMENTARY. 

''been  intended  to  be  struck  at  in  silence  ;  and  to  be  con- 
strolled  implicatively  under  the  generality  of  the  terms  of 
' '  the  provision  :  Thirdly,  because  the  provision  itself  is  so 
"indefinite,  that  without  any  control,  it  would  operate  in 
"other  cases  unreasonably,  to  the  ox)pression  of  the  inno- 
"cent,  and  contrary  to  humanity;  when  it  is  a  known 
"maxim*  '  that  a  statute  ought  to  be  so  construed,  that  no 
"'man  who  is  innocent  be  punished  or  endamaged:' 
^' Fourthly^  because  the  statute  under  our  consideration 
*•' does  not  contain  even  the  common  nonobstante  cZa^^^e, 
''though  it  is  so  frequent  in  our  statute  hook — 'and  it  is 
"' an  established  maxim  that  where  two  laws  are  seem- 
'"ingly  repugnant^  and  there  be  no  clause  of  nonob- 
"  '  stante  in  the  latter^  they  shall^  if  possible^  have  such 
"  '  construction,  that  the  latter  may  not  repeal  the  former 
'"by  implication  :^  ^  Fifthly,  because,  although  it  is  a  true 
' '  rule  that  posterior es  leges  prior  ibus  derogaid,  to  use  the 
"  language  of  Sir  Thomas  Powis  in  the  Dutchess  of  Hamil- 
"  ton's  case — :j:  'at  the  same  time,  it  must  be  remembered, 
' ' '  that  repeals  by  implication  are  disfavoured  by  law,  and 
"  '  never  allowed  of  but  where  the  inconsistency  and  repug- 
"  'nancy  are  plain,  glaring  and  unavoidable:  for  these  re- 
"  'peals  carry  along  with  them  a  tacit  reflexion  upon  the 
"  'legislature,  that  they  should  ignorantly,  and  without 
"  'knowing  it,  make  one  act  repugnant  to  and  inconsistent 
"'with  another:  and  such  repeals  have  ever  been  inter- 
"  'preted  so  as  to  repeal  as  little  of  the  precedent  law  as 
'"  possible. '§ 

"Whoever  then  is  clearly  exempted  from  the  operation 

*  I  Inst.  360. 

t  The  marginal  note  in  the  court's  opinion  cites  Dyer's  Reports,  348,  at  the 
bottom.  In  Dyer  347  b.,  it  is  said  :  "  When  there  are  two  statutes,  the  one 
"  in  appearance  crossing  the  other,  and  no  clause  of  nonobstante  is  contained 
'*  in  the  second  statute,  so  that  one  may  stand  with  the  other,  the  exposition 
"  ought  to  be  that  both  should  stand  in  force,"  &c.  The  quotation  in  the 
court's  fourth  head  is  from  a  comment  on  this  passage,  the  source  of  which  is 
not  mentioned. 

1 10  Modern,  118. 

^  Same,  pp.  44,  45, 


HISTORICAL   COMMENTARY.  229 

**  of  this  statute  by  the  law  of  nations,  this  courf  must  take 
''for  granted,  could  never  have  been  intended  to  be  com- 
''prehended  within  it  by  the  legislature."* 

[It  is  here  in  point  to  quote  the  following  from  the  opinion 
of  the  U.  S.  Supreme  Court  in  Murray  v.  the  Charming 
Betsey,  delivered  by  C.  J.  Marshall :  "An  act  of  Congress 
"  ought  never  to  be  construed  to  violate  the  law  of  nations  if 
"any  other  possible  construction  remains  :"  2  Cranch,  118.] 

This  conclusion  was  not  reached  without  much  anxiety, 
for  the  court  was  marching  between  the  wolves  and  the  prec- 
ipice. Rarely  has  a  political  situation  in  a  civil  society, 
free  from  fear  of  military  power,  been  more  strained  than 
that  then  existing  in  New  York.  If  the  court  made  an  in- 
considerate step  on  one  side,  a  conflict  between  the  judici- 
ary and  the  legislature  would  ensue.  If  it  shrunk  from  a 
necessary  step  on  the  other,  a  conflict  between  the  union  and 
the  state  would  ensue  ;  for  the  state  would  then  refuse  exe- 
cution to  a  treaty  made  by  the  union.  Stone  and  iron, 
therefore,  struck  fire,  when  the  plaintiff's  counsel  objected 
that  Congress  could  not  make  a  treaty  of  peace  reaching  the 
internal  police  of  the  state  of  New  York. 

To  this  objection  the  opinion  made  answer  that  the  opera- 
tion and  effect  of  the  treaty,  within  the  state  of  New  York, 
were  proper  subjects  for  judicial  inquiry  and  decision.  The 
judgment  of  the  court  must  be  determined  by  its  spirit  and 
true  meaning.  A  fair  and  reasonable  construction  must  be 
given  to  it,  and  no  man  should  be  deprived  of  any  benefit 
which  such  a  construction  would  give  him. 

The  authority  of  the  treaty  was  a  matter  distinct  from 
its  operation.  Its  authority  was  the  confederation,  which, 
as  far  as  the  court  had  power,  it  would  never  suffer  to  be 
violated.  The  union  of  the  states  had  been  legalized  in  the 
state  constitution  of  1777  and  had  been  adopted  as  a  funda- 
mental law  in  the  first  act  of  the  legislature  of  the  state. 
By  the  confederation,  the  Congress  had  full  and  exclusive 
powers  of  making  peace  and  war.  Tlie  obligation  of  the 
treaty  of  peace  made  by  Congress  was  perpetual. 

*  Same,  p.  45. 


230  HISTOPwICAL   COMMENT AKY. 

Read  by  the  light  of  the  present  day  and  exchiding  the 
light  of  history,  such  views  may  seem  to  some  to  lead  directly 
to  an  expectation  that  the  court  was  on  the  eve  of  declaring 
itself  not  bound  by  any  state  statute  violating  the  confedera- 
tion or  the  treaty.  This,  however,  would  be  an  anachron- 
ism. From  a  constitutional  point  of  view,  both  in  civil  and 
religious  matters,  the  New  York  of  to-day  is  a  different 
place  from  the  New  York  of  the  first  year  of  independent 
peace.  Such  a  judicial  declaration  as  the  above,  made  by 
a  New  York  court  in  1784,  could  have  a  different  legal 
meaning  from  that  imported  by  like  words  used  by  a  like 
tribunal  in  1892. 

What  follows  the  foregoing  exposition  of  federal  right  is 
nothing  like  any  claim  for  judicial  competency  to  hold  leg- 
islation void  because  ascertained  to  be  contrary  to  federal 
or  to  constitutional  right.  The  modest  claim  made  on  be- 
half of  the  judiciary  was  merely  to  a  judicial  discretion 
within  the  limits  of  Blackstone's  tenth  rule  for  construing 
statutes.  This  was  consequently  a  claim  to  a  judicial  dis- 
cretion confined  to  matters  collateral  to  the  principal  mat- 
ters of  a  statute  in  cases  unforeseen.  In  such  cases,  as  the 
intention  of  the  legislature  was  not  clear,  a  reasonable  judi- 
cial presumption  concerning  the  same  was  rightful.  The 
discretion,  which  Blackstone  claimed  for  an  English  court, 
was  asserted  for  a  New  York  court,  but  nothing  more. 
Every  thing  more  was  disclaimed. 

Closely  following  Blackstone's  words  and  ideas,  the  court 
observed:  "  The  supremacy  of  the  Legislature  need  not 
"  he  called  into  question  ;  if  they  tJiinJc  fit  positively  to  en- 
* '  act  a  law^  there  is  no  power  which  can  controul  them. 
' '  When  the  main  object  of  such  a  law  is  clearly  expressed^ 
*'  and  the  intention  is  manifest^  the  Judges  are  not  at  lih- 
'' erty^  althd  it  appears  to  them  to  he  unreasonable,  to  re- 
^^ject  it :  for  this  were  to  set  the  judicial  above  the  leglsla- 
''  tive^  which  would  be  subversive  of  all  government. 

'^  But  when  a  law  is  expressed  in  general  words,  and 
''some  collateral  matter,  which  happens  to  arise  from 
''those  general  words  is  unreasonable,  there  the  judges 
"are  in  decency  to  conclude,  that  the  consequences  were 


HISTORICAL   COMMENTARY.  231 

^^  not  foreseen  by  ill '  legislature ;  and  therefore  they  are 
^' at  liberty  to  expound  the  statute  by  equity^  and  only 
'•QUOAD  HOC  to  disregard  it. 

''  When  the  judicial  make  these  distinctions^  they  do 
^^not  contronl  the  legislature  ;  they  endeavour  to  give  their 
^'intention  its  proper  effect. 

"This  is  the  substance  of  the  authorities,  on  a  compre- 
"  hensive  view  of  the  subject ;  this  is  the  language  of  Black- 
"  stone  in  his  celebrated  commentaries,*  and  this  is  the 
'"^practice  of  the  courts  of  justice,  from  which  we  have 
"copied  our  jurisprudence,  as  well  as  the  models  of  our 
' '  internal  judicatories. ' '  f 

Blackstone's  tenth  rule  for  construing  statutes  in  Eng- 
land under  an  unwritten  constitution  was  thus  adopted 
bodily  by  a  court  of  New  York  under  a  written  constitution. 

The  court  applied  the  foregoing  doctrine  in  interpreting 
the  statute  and  came  to  the  decision  that  collateral  matter 
arose  out  of  its  general  words,  which  was  unreasonable.  It 
held  itself  bound  to  conclude  that  such  unreasonable  conse- 
quence was  not  foreseen  by  the  legislature.  It  was  bound, 
therefore,  to  explain  the  statute  by  equity  and  to  disregard 
it  in  so  far  only  as  it  would  operate  thus  unreasonably  as 
to  such  unforeseen  consequence.  The  statute,  therefore, 
did  not  comprehend  the  cases  of  American  prisoners  in  the 
power  of  the  enemy  nor  those  of  enemies  clearly  exempted 
by  the  law  of  nations. 

After  this  interpretation,  the  court  held  itself  in  a  posi- 
tion to  declare,  that  the  questions  whether  the  statute  re- 
voked the  law  of  nations,  and  whether  any  part  of  the 
statMte  was  repealed  by  the  subsequent  treaty,  were  foreign 
to  the  circumstances  of  this  case. 

The  bearing  of  the  law  of  the  opinion  upon  the  case  of  a 
conflict  between  a  state  statute  and  the  state  constitution 
is  obvious.  If  Blackstone's  doctrine  was  the  law  of  New 
York,  no  court  could  ever  reject  a  statute  in  order  to  obey 
the  constitution,  although  the  latter  was  written.  If  a  court 
could  do  so,  the  law  of  legislation  would  be  based  upon  a 

*  Blackstone's  Commentaries,  I.  p.  91. 
t  Pamphlet  Report,  p.  41. 


232  HISTORICAL  commentary. 

denial  of  Blackstone's  doctrine.  Thus,  if  the  opinion  be 
correct,  the  question  whether  a  statute  be  constitutional  or 
not,  could  never  be  a  judicial,  and  must  always  be  an  ex- 
trajudicial question.  All  courts  must  be  bound  by  all  stat- 
utes of  the  legislature.  It  has  previously  been  shown  that 
such  is  the  law  of  legislation  under  the  written  Swiss  fed- 
eral constitution  and  under  all  the  written  German  state 
constitutions. 

And,  indeed,  in  the  opinion  of  some  lawyers  of  1784,  the 
claim  of  the  court  to  a  limited  Blackstonian  discretion 
might  have  rather  been  impaired  than  strengthened  by  the 
written  constitution  of  New  York.  By  its  third  article,  a 
Council  for  revising  acts  of  the  Senate  and  Assembly  was 
established.  This  consisted  of  three  or  more  members,  mz.^ 
the  governor  and  two  or  more  of  the  highest  judicial  mag- 
istrates (the  chancellor  and  judges  of  the  Supreme  Court). 
If  an  act  was  approved  by  the  Council,  it  became  a  law.  If 
not,  a  majority  of  two- thirds  of  both  houses  was  required  to 
repass  it.  According  to  the  article,  the  Council,  proceed- 
ing by  the  rule  of  majority,  could  object  to  any  proposed 
law  deemed  improper  by  them.  Improper  proposed  laws 
were  such  as  were  ' '  inconsistent  with  the  spirit  of  this  con- 
"  stitution,  or  with  public  good,'"^  The  Council  had  ap- 
proved the  statute  in  question.  In  their  judgment  it  was 
consistent  with  the  spirit  of  the  constitution  and  with  'the 
public  good.  The  majority  of  the  Council  consisted  always 
of  judicial  members  and  the  attorney  general  seemed  to  the 
court  to  regard  the  determination  of  the  Council  upon  the 
statute  in  the  light  of  a  judicial  decision  by  which  the  court 
ought  to  be  guided,  for  the  sake  of  uniformity  in  the  dis- 
pensation of  justice.  The  court  declined  to  take  any  such 
view.  The  determination  of  the  Council  was  not  a  judicial 
one.  The  court  did  not  believe  that  the  judicial  members 
of  the  Council  "  would  in  the  seat  of  judgment  always  be 
"precluded,  even  by  their  own  opinion  given  in  the  Coun- 
' '  cil  of  Revision. ' '  Thus  was  decided  the  question  whether 
the  third  article  of  the  constitution  interfered  with  the  lim- 

*  Poor,  Charters  and  Constitutions,  II.  1332,  article  3  of  the  Constitution  of 
New  York. 


HISTORICAL   COMMENTARY.  233 

ited  discretion  claimed  for  the  judiciary.  Such  a  decision 
on  one  part  of  Blackstone's  rule  confirms  what  the  writer 
has  observed  above  on  the  whole  rule  as  the  law  of  the  opin- 
ion in  cases  of  conflict  between  statutes  and  the  constitution. 
On  the  whole  matter  of  the  case  of  Rutgers  v.  Wadding- 
ton,  it  is,  therefore,  correct  to  say  that  according  to  the  law 
of  the  opinion,  no  court  could  decide  a  questioned  statute 
unconstitutional  and  hold  it  therefore  void. 

Before  dismissing  the  consideration  of  Rutgers  v.  Wad- 
dington,  an  additional  observation  is  necessary  for  further 
reference. 

The  opinion  of  the  court  is  the  means  of  now  introducing 
the  head  of  the  nonohstante  clause,  which  will  play  a  most 
important  part  in  the  exposition  of  the  law  of  the  subject 
of  this  Essay. 

The  opinion  points  out  that,  if  the  statute  had  contained 
a  clause  of  nonohstante  to  the  law  of  nations,  there  would 
have  been  an  express  repeal  of  any  part  of  that  law  contra- 
riant  to  the  statute.  The  absence  of  such  a  clause  or  of 
other  express  language  of  like  import  excluded  the  possi- 
bility of  such  a  repeal,  because  the  notion  of  any  repealing 
by  implication  must  be  rejected.  Contrariety  between  the 
statute  and  the  law  of  nations  could  not  be  jjresumed.  It 
must  be  expressed.  This  exposition  of  the  law  of  the  non- 
ohstante clause  was  most  opportune.  It  fell  on  the  fruitful 
soil  of  1784  and  before  long  the  seed  produced  a  harvest. 
In  the  spring  of  1787,  the  United  States  in  Congress  as- 
sembled moved  federally  the  several  states  to  enact  identical 
laws  with  clauses  of  nonohstante  to  all  their  respective  stat- 
utes and  x)arts  of  statutes  containing  anything  contrariant 
to  the  treaty  of  peace.  Not  only  the  year  1787,  but  the 
years  1788,  and  1789,  were  memorable  in  the  long  American 
history  of  the  legal  institution  known  as  the  nonohstante 
clause.  That  history  begins  with  the  bull  of  Alexander  VI., 
in  1499,  and  is  not  yet  ended,  as  will  hereinafter  fully 
appear. 


234  HISTORICAL   COMMENTARY. 


CHAPTER  XXY. 


Of  tlie  lai^  of  Rliode  Island  and  of  the  case  of  Trevett 

V,  l^eeden. 


The  next  subject  for  consideration  will  be  the  historical 
case  of  Trevett  v.  Weeden,  heard  and  adjudicated  by  the 
Superior  Court  of  Judicature  of  Rhode  Island,  at  Newport, 
on  September  25th  and  26th,  1786. 

Judge  Cooley  observes  that  this  was  the  first  American 
case  in  which  a  law  ' '  was  declared  unconstitutional  and 
^'void."^^- 

The  general  assembly  of  Rhode  Island,  by  an  act  of  May 
session,  1786,  provided  for  the  emission  of  certain  paper 
money.  By  an  act  of  June  session,  1786,  the  same  body 
enacted  that  any  j^erson  who  should  refuse  to  receive  the 
said  paper  money  in  exchange  for  goods  on  sale  at  the  value 
of  the  face  of  the  bills,  or  who  should  make  two  prices  for 
such  goods,  one  in  paper  and  the  other  in  silver,  etc. ,  should 
upon  conviction  thereof  be  fined  one  hundred  pounds  for 
the  first  offence,  and  for  the  second  be  fined  the  same  amount 
and  become  incapable  of  electing,  or  being  elected,  to  any 
office  of  honour. 

By  act  of  special  August  session,  1786,  the  assembly  pro- 
vided for  offences  against  the  jjrevious  act  being  tried  by 
special  courts,  each  of  which  should  proceed  in  the  follow- 
ing way :  ' '  that  the  said  court,  when  so  convened,  shall 
"proceed  to  the  trial  of  saidoft'ender  ;  and  they  are  hereby 


*  Constitutional  Limitations,  5th  Ed.,  page  194  footnote. 


HISTORICAL   COMMENTAHY.  235 

*'  authorized  so  to  do,  without  any  jury,  by  a  majority  of 
*'  the  judges  present,  according  to  the  laws  of  the  land,  and 
*'to  make  adjudication  and  determination  ;  and  that  three 
"members  be  sufficient  to  constitute  a  court. '"^  It  was 
further  enacted  that  there  should  be  no  appeal  from  the 
judgment  of  the  court,  etc. 

The  cause  of  Trevett  v.  Weeden  was  a  qui  tarn  action 
"brought  by  John  Trevett,  informer,  against  John  Weeden, 
"  butcher,  for  refusing  to  take,  of  the  said  John  Trevett,  for 
"meat,  the  bills  of  credit  emitted  by  an  act  of  the  general 
"assembly  of  said  state."! 

To  the  plaintiff's  complaint  the  defendant  made  answer 
by  the  following  plea : 

"The  said  John  Weeden  comes  into  court  and  prays  the 
"  honourable  court  here  will  not  take  cognizance  of  the  com- 
"  plaint  of  the  said  John  Trevett ;  because  he  saith,  that  it 
"appears  by  the  act  of  the  general  assembly,  whereon  said 
"  information  is  founded,  that  the  said  act  hath  expired, 
"and  hath  no  force:  Also,  for  that  by  the  said  act  the 
"matters  of  complaint  are  made  triable  before  special 
"courts,  incontrollable  by  the  supreme  judiciary  court  of 
"the  state  :  And  also,  for  that  the  court  is  not  authorized 
"or empowered  by  said  act,  to  impanel  a  jury  to  try  the 
"facts  charged  in  the  information,  and  so  the  same  is  un- 
^''  constitutional  and  tioid:  All  which  the  said  Weeden  is 
"  ready  to  verify.  Wherefore  he  prays  judgment  of  the 
"  court  here,  that  they  will  not  take  further  cognizance  of 
"  the  said  information.''^  % 

What  the  counsel  for  the  prosecution  said  is  not  extant, 
but  it  must  have  consisted  only  of  brief  and  ordinary  obser- 
vations. General  James  M.  Varnum,  member  of  the  federal 
Congress  from  Rhode  Island,  was  the  senior  counsel  for  the 
defence.  Some  time  after  the  hearing  of  the  cause,  he 
printed  his  argument  in  a  pamphlet  published  at  Providence 
by  John  Carter,  in  1787. 

*  Varnum,  p.  59. 

t  Providence  Gazette,  October  7th,  1786  ;  American  Museum,  vol.  5,  p.  36. 

X  Gazette  as  cited  ;  Museum  as  cited  ;  Varnum,  p.  2, 


236  HISTORICAL   COMMENTARY. 

Varnum  was  the  leading  spirit  of  the  cause.  In  his  re- 
marlvable  argument  he  sought  to  show  :^ 

(1)  That  tlie  act,  upon  wliich  tlie  information  was  founded, 
had  expired  ; 

(2)  That,  by  the  act,  special  jurisdictions  were  created,  un- 
controllable by  the  supreme  or  superior  court  of  judicature  ;t 

(3)  That,  by  the  act,  the  court  was  not  authorized  or  em- 
jjowered  to  impanel  a  jury  to  try  the  facts  contained  in 
the  information  ;J 

(4)  That  the  trial  by  jury  was  a  fundamental  constitu- 
tional right,  was  a  part  of  the  legal  constitution  of  Rhode 
Island,  had  always  been  claimed  as  such,  had  always  been 
ratified  as  such,  and  had  always  been  held  most  dear  and 
sacred  ;§ 

(5)  That  the  legislature  derived  all  its  authority  from  the 
constitution,  that  it  had  no  power  of  making  laws  but  in 
subordination  to  the  constitution  and  that  therefore  it 
could  not  infringe  or  violate  the  constitution,  as  was  done 
by  enacting  an  act  depriving  citizens  of  the  constitutional 
right  of  trial  by  jury  ;  || 

(6)  "  That  therefore  the  act  is  unconstitutional  and  void  ;T[ 

(7)  "That  this  court  has  power  to  judge  and  determine 
"what  acts  of  the  general  assembly  are  agreeable  to  the 
"constitution;'^''^ 

(8)  ' '  That  this  court  is  under  the  solemn  obligations  to 
"execute  the  laws  of  the  land,  and  therefore  can  not,  will 
"not  consider  this  act  as  a  law  of  the  land."tt 

Before  going  further  it  may  be  remarked  that  the  act  of 
the  general  assembly  in  the  quotations  from  the  defendant's 
plea  abovequoted  is  said  to  be  "unconstitutional  and  void." 
In  the  quotation  in  Varnum,  page  3,  line  3,  the  language  is 
identical.     That  language,  however,  is  not  accurate.     The 

*  Varnum,    p.  35,  5. 

t  lb.  "  "    7. 

t  lb.  "  "    10. 

g  lb.  "  "    11. 

II  lb.  "  "    20  et  seq, 

^  lb.  -  " 

**  lb.  "  " 

It  lb.  "  " 


HISTORICAL   COMMENTARY.  237 

precise  words  were  that  the  act  was  "unconstitutional  and 
"50  void."  This  is  proved  by  Varnum,  page  37  line  10 
from  the  bottom  and  page  38,  line  2  from  the  bottom. 
Judge  Howell's  observations  on  the  latter  page  are  decisive 
on  this  important  i)oint. 

The  first  of  Yarnum's  contentions  was  that  the  act  in 
question  had  expired.  The  cLetencedid not,  however,  place 
their  principal  reliance  upon  this  objection,  which  appears 
to  have  hung  upon  the  unskillfulness  of  the  penman  of  the 
act.  As  Yamum  feared  the  injustice  of  the  legislature  to 
the  judges,  in  the  event  of  the  court's  doing  justice  to  his 
client,  it  might  become  a  useful  shield  for  the  latter.  It 
was  probably  thought  so  by  the  court,  judging  from  the 
speech  defending  its  action  and  judgment  which  was  made 
by  Judge  Howell  before  the  legislature.  Every  thing  said 
both  by  Yarnum  and  the  judges  in  court  must  be  read  in 
the  light  of  their  common  expectation  that  the  legislature 
would  proceed  in  some  hostile  way  against  the  latter,  if 
they  refused  to  obey  the  act. 

The  argument  upon  the  second  point,  mz.^  that,  by  the 
act,  special  jurisdictions  were  created  uncontrollable  by  the 
supreme  court  of  judicature,  does  not  go  to  the  question 
^^hether  or  not  the  act  was  unconstitutional  and  so  void. 
It  was,  however,  one  of  much  moment  in  moving  the  court 
to  consider  whether  the  act  was  so  or  not  on  other  points. 

Proof  of  this  is  found  in  paragraph  2  page  10,  which  holds 
that  at  most  the  Supreme  Court  could,  under  the  act,  cor- 
rect only  the  errors  of  a  special  court  composed  of  three  or 
more  of  its  own  members,  but  could  not  correct  the  error 
of  any  of  the  five  special  courts  composed  of  members  of 
the  courts  of  Common  Pleas. 

The  next  head  of  Yarnum's  argument  was  an  inquiry 
whether  the  legislature  of  the  state  "can  deprive  the  citi- 
"  zens  of  their  constitutional  right,  the  trial  by  jury." 

It  must  here  be  recalled  by  the  reader  that  the  constitu- 
tion of  Rhode  Island  was,  in  1786,  an  unwritten  constitu- 
tion ascertained  from  history,  not  from  the  inspection  of  a 
written  fundamental  law  denominated  a  constitution.* 

*  Cf,  Luther  v.  Borden,  7  Howard,  page  35. 


238  HISTORICAL   COMMENTARY. 

It  is  of  tlie  essence  of  Yamum's  whole  argument  that 
there  was  a  continuity  in  the  constitution  of  Rhode  Island 
from  the  foundation  thereof  in  the  reign  of  Charles  II.  down 
to  the  then  year  1786.  The  Revolution  had  changed  only 
certain  2)arts  of  the  constitution.  The  legislature  of  the 
state  was  identical  with  the  legislature  of  the  colony,  and 
was  not  a  new  legislature  put  in  the  place  of  an  old  one 
which  had  been  destroyed.  The  knowledge  of  what  the 
constitution  of  the  state'  was,  and  the  legal  vigour  and  va- 
lidity thereof  were  derived  from  the  same  source,  viz.^  the 
custom  and  usage  of  the  people.  This  custom  and  usage 
of  the  people  began  far  back  in  colonial  times  and  extended 
from  one  generation  to  another  down  to  the  then  present 
year  of  1786.  There  was  no  break  in  the  continuity  of  that 
custom  and  usage  at  the  Revolution."^ 

In  Connecticut,  it  may  be  injected,  a  like  unwritten  con- 
stitution existed  in  a  like  way.f  An  act  had  been  passed 
there  in  1776,  declaring  that  the  old  colonial  charter  of 
Charles  II.  should  have  vigour  under  indei^endence.  That 
act,  however,  was  not  made  by  any  constitutional  conven- 
tion, but  by  the  ordinary  legislature.  It  was  the  common 
custom  of  the  people  of  Connecticut  that  gave  vigour  to  the 
colonial  charter  as  part  of  the  constitution  of  that  state. 

Although  the  colonial  charter  of  Rhode  Island  lost  all 
vigour  at  the  Revolution,  as  an  act  of  the  late  sovereign,  it 
w^as,  mutatis  mutandis,  continued  in  vigour  a  part  of  the 
unwritten  constitution  of  the  new  state  by  the  custom  and 
usage  of  the  people  and  was  law  by  virtue  of  their  custom 
and  usage,  as  it  was  formerly  law  by  virtue  of  the  king's 
prerogative  lawfully  and  rightfully  exercised. 

The  charter  had  been  granted  by  the  king  upon  the  peti- 
tion of  the  people.  It  was  conclusive  evidence  of  the  in- 
tention of  the  king  and  of  the  compact  of  the  people.  The 
powers  of  the  legislature  were  clearly  created  and  as  clearly 
limited  by  it.  They  had  power  and  authority  to  make 
laws,  provided  such  laws  were  not  contrary  and  not  repug- 

*  Cf.  Varnum,  pp.  22,  23,  25. 

t  Cf.  Calder  v.  Bull,  3  Dallas,  38G,  and  Poor's  Charters  and  Constitutions, 
under  Connecticut. 


HISTORICAL   COMMENTARY.  239 

nant  to  tlie  laws  of  England.  The  laws  of  England  in- 
cluded the  common  law,  Magna  Charta,  and  the  trial  by- 
jury.* 

The  people  of  the  state,  at  the  Revolution,  might  have 
met  in  solemn  convention  in  order  to  annul  the  old  consti- 
tution and  make  a  new  one  by  a  written  instrument.  They 
had  not  done  so,  nor  any  thing  like  it.  Neither  had  the 
people  entrusted  their  legislators  with  the  power  of  altering 
the  constitution.  They  had  continued  the  ancient  consti- 
tution, mutatis  mutandis^  by  their  unbroken  custom.  The 
old  legislature  was  continued  with  the  old  constitutional 
limitations  upon  its  power.  The  colonial  legislature  could 
not  have  abolished  the  trial  by  jury,  and  therefore  the  state 
legislature  could  not  abolish  it.  The  state  had  a  constitu- 
tion as  much  as  the  colony,  f 

"If  we  have  not  a  constitution,  by  what  authority  doth 
''our  general  assembly  convene  to  make  laws  and  levy 
' '  taxes  \  Their  appointment  by  the  freemen  of  the  towns, 
"  excluding  the  idea  of  a  social  compact,  cannot  separately 
"give  them  power  to  make  laws  comi)ulsory  upon  the  other 
"towns.  They  could  only  meet,  in  that  case,  to  form  a 
"social  comi)act  between  the  jDeople  of  the  towns.  But 
"they  do  meet  by  the  appointment  of  their  respective 
"towns,  at  such  times  and  places,  and  in  such  numbers, 
"as  they  have  been  accustomed  to  from  the  beginning. 
"When  met,  they  make  laws  and  levy  taxes,  and  their 
"  constituents  obey  those  laws,  and  pay  those  taxes.  Con- 
"sequently  they  meet,  deliberate  and  enact,  in  virtue  of  a 
"constitution,  Avhich,  if  they  attempt  to  destroy,  or  in  any 
"manner  infringe,  they  violate  the  trust  reposed  in  them, 
^^  and  so  their  acts  are  not  tu  he  considered  as  laws,  or 
"  binding  upon  the  people.' 'X 

The  above  reflections  ui)on  the  constitution  of  Rhode 
Island  are  confined  to  matters  of  historical  law  and  positive 
right.  Varnum  does  not,  however,  speak  only  of  such 
considerations.     As  was  usual,  perhaps  unavoidable  in  the 

*  Varnum,  pp.  22,  23. 

t  Cf.  Varnum,  pp.  30,  25,  23,  </.  34. 

X  Varnum,  pp.  25,  26. 


240  HISTORICAL  comme;n^tary. 

eighteenth  century,  his  argument  goes  into  reasoning  from 
an  abstract  philosophy  of  law.     He  quotes  freely  from  Locke 
and  Yattel.     With  much  originality,  he  adapts  their  ab- 
stract views  of  infant  society  and  social  compacts  to  the 
actual  facts  of  the  settlement  and  history  of  the  towns  (or 
townships)  of  the  colony  of  Rhode  Island  and  the  Provi- 
dence Plantations.     Space  precludes  further  disquisition  of 
this  portion  of  the  discussion  except  upon  one  point.     A 
quoted  passage  from  Yattel  holds  that  the  legislature  of 
any  state  having  a  constitution  can  not  alter  the  fundamental 
constitutional  laws,  without  having  in  express  terms  the 
power  to  change  the  same  as  part  of  their  commission.     This 
passage  concludes  :   "In  short,  these  legislators  derive  their 
"power  from  the  constitution;  how  then  can  they  change 
"it,  without  destroying  the  foundation  of  their  authority." 
This  view  of  Yattel' s  as  to  a  constitution  of  a  state  in  the 
abstract  is  deemed  by  Yarnum  to  support  his  own  view  of 
the  concrete  constitution  of  Rhode  Island.     Both,  indeed, 
regard  every  act  of  any  legislature  made  in  violation  of  the 
constitution  of  their  state  to  be  void  because  made  beyond 
their  commission,  mandate  or  appointment.     Yattel  main- 
tains that  this  is  so  because  the  legislature  can  not  destroy 
the  constitution  without  destroying  that  which  is  the  only 
foundation  of  their  legislative  power  or  authority.     Yarnum 
approves  this  doctrine  as  an  abstract  one,  but  his  pamphlet 
does  not  clearly  assert  it  to  be  true  of  the  concrete  consti- 
tution of   Rhode  Island.     According  to  the  report  of  his 
spoken  words  he  did  clearly  make  such  an  assertion.  ^     It 
is  of  much  importance  to  observe  that  the  philosophic  law, 
which  Yarnum  quotes  from  Yattel,  is  identical  with  the 
actual  law  of  North  Carolina,  as  laid  down  by  the  Superior 
Court  of  that  state  in  the  case  of  Bayard  v.  Singleton  in 
1787,  the  next  year  following.     That  court  held  that  the 
legislature  of  North  Carolina  could  not  make  a  law  which 
altered  the  constitution  of  the  state,  without  destroying  the 
foundation  of  their  own  legislative  authority.     The  great 
difference  between  the  cases  of  Trevett  v.   Weeden  and 

*  See  Providence  Gazette  and  American  Museum. 


HISTORICAL   COMMENTARY.  241 

Bayard  v.  Singleton  was  that  the  former  arose  under  an  un- 
written, and  the  latter  under  a  written,  constitution.  Both 
related  to  the  denial  of  the  trial  by  jury,  as  will  be  seen 
when  the  latter  case  is  fully  examined. 

Yarnum's  next  contention  was  that  it  was  b,  Judicial  ques- 
tion whether  or  not  the  legislature  had  violated  the  constitu- 
tional rights  of  the  people  in  enacting  the  law  referred  to. 
*'  As  the  legislative  is  the  supreme  power  in  government,  who 
^'is  to  judge  whether  they  have  violated  the  constitutional 
*' rights  of  the  people  ?  I  answer,  their  supremacy  (consist- 
*'ing  in  the  power  of  making  laws,  agreeable  to  their 
"appointment)  is  derived  from  the  constitution,  is  subor- 
**  dinate  to  it,  and  therefore,  whenever  they  attempt  to  en- 
*'  slave  the  people,  and  carry  their  attempts  into  execution, 
*'  the  people  themselves  will  judge,  as  the  only  resort  in  the 
"last  stages  of  oppression.  But  when  they  proceed  no 
"  farther  than  merely  to  enact  what  they  may  call  laws,  and 
"refer  those  to  the  judiciary  courts  for  determination,  then, 
"(in  the  discharge  of  the  great  trust  reposed  in  them,  and 
"  to  prevent  the  horrors  of  civil  war,  as  in  the  present  case,) 
"the  judges  can,  and  we  trust  Your  Honors  will,  decide 
"upon  them.""^ 

[That  is  to  say,  when  the  legislature  enact  a  law  abolish- 
ing the  constitutional  rights  of  the  people,  prevent  all  judi- 
cial action  concerning  it,  and  execute  the  act  themselves,  the 
people  must  then  submit,  or  resort  to  civil  war  as  the  only 
remedy.  But  when  the  legislature  enact  such  a  law  and  do 
not  attempt  to  execute  it  themselves,  but  direct  the  judici- 
ary to  carry  it  into  execution,  the  duty  of  the  judges  is 
this :  they  must  examine  such  legislation  and  determine 
whether  it  deprives  the  people  of  their  constitutional  rights 
or  not,  and  if  it  do  so,  then,  they  must  say  so,  and  hold  it 
to  be  therefore  no  law  of  the  land.  If  the  judges  do  other- 
wise, they  unite  with  the  legislature  in  compelling  the  people 
to  resort  to  civil  war  as  the  only  remedy  left.  If,  however, 
the  judges  furnish  a  peaceful  remedy  to  the  people  for  their 
wrongs,  they  are  not  acting  extrajudicially,  hut  Judicially, 

*  Varnum,  p.  26. 

16  0. 


242  HISTORICAL   COMMENTARY. 

It  is  a  fundamental  object  in  establishing  courts  of  justice 
and  civil  society  to  prevent  every  kind  of  war  except  foreign 
war,  by  furnishing  judicial  remedies  for  legal  wrongs.] 

In  a  despotism  the  judges  are  not  independent,  according 
to  Varnum.  There  all  officials  are  merely  ministerial. 
Where  political  freedom  exists,  the  judges  are  free  and  in- 
dependent administrators  of  justice.  With  such  judges 
only  can  a  real  judiciary  exist.  "^ 

The  power  which  Yarnum  asked  the  court  to  exercise 
was,  he  maintained,  a  judicial  one.  It  was  not  an  extra- 
judicial one.  The  judges  would  assume  no  legislative  power 
in  exercising  it.  Its  rightfulness  is  based  upon  the  separa- 
tion, not  upon  the  confusion,  of  the  powers  of  government. 
In  a  tyranny,  all  the  public  powers  are  lodged  together  in 
one  hand,  whether  it  be  the  government  of  a  single  tyrant, 
or  a  body  of  tyrants,  as  the  legislature  of  Rhode  Island 
would  be,  if  that  body  possessed  judicial,  executive  and 
legislative  powers  combined.  '  "The  true  distinction 
"lies  in  this,  that  the  legislative  have  the  uncontrollable 
' '  power  of  making  laws  not  repugnant  to  the  constitution. 
"  The  judiciary  have  the  sole  power  of  judging  those  laws, 
"and  are  bound  to  execute  them ;  but  cannot  admit  any 
"act  of  the  legislative  as  law,  which  is  against  the 
"constitution."! 

The  judges  had  sworn  an  oath  of  office  to  execute  the 
laws  and  also  an  oath  of  allegiance  to  the  state.  Rhode 
Island  became  a  state  in  order  to  support  its  fundamental 
constitutional  laws.  The  trial  by  jury  is  a  fundamental 
constitutional  law  and  therefore  is  binding  upon  the  judges 
by  a  double  oath.:|:  There  were  no  laws  of  the  general  as- 
sembly distinct  from  the  laws  of  the  state.  Laws  made  by 
the  general  assembly  under  the  powers  thereof  derived  from 
the  constitution  "become  the  laws  of  the  land  and  as  such 
"the  court  is  sworn  to  execute  them.  But  if  the  general 
"assembly  attempt  to  make  laws  contrary  hereunto,  the 
"court  can  not  receive  them."     If  the  judges  should  do  so, 

*  Varnum,  p.  26. 
t  lb.  "  37. 
t      lb.         "  28. 


HISTORICAL   COMMENTARY.  243 

they  would  violate  both  their  oaths.  ' '  There  is  no  middle 
*'line.  The  legislative  hath  power  to  go  all  lengths,  or  not 
^'  to  overleap  the  bounds  of  its  appointment  at  all.  So  it  is 
''  with  the  judiciary  ;  it  must  reject  all  acts  of  the  legisla- 
''tive  that  are  contrary  to  the  trust  reposed  in  them  by  the 
"people,  or  it  must  adopt  all."* 

There  is  certainly  verisimilitude  in  the  idea  that  this  pas- 
sage of  Varnum's  had  much  to  do  in  suggesting  the  follow- 
ing passage  of  Marshall' s  in  Marbury  v.  Madison  : 

''Between  these  alternatives  there  is  no  middle  ground. 
"The  constitution  is  either  a  superior,  paramount  law,  un- 
"  changeable  by  ordinary  means ;  or  it  is  on  a  level  with 
"ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
' '  when  the  legislature  shall  please  to  alter  it. 

"  If  the  former  part  of  the  alternative  be  true,  then  a  leg- 
"  islative  act  contrary  to  the  constitution  is  not  law  ;  if  the 
"latter  part  be  true,  then  written  constitutions  are  absurd 
"  attempts  on  the  part  of  the  i^eople  to  limit  a  power  in  its 
"  own  nature  illimitable,  "f 

Just  as  all  men  and  all  judges  were  bound  by  the  laws  of 
nature  in  preference  to  any  human  laws,  because  they  were 
ordained  by  God  himself  anterior  to  any  political  institu- 
tions, so  the  judges  of  the  state  were  bound  by  the  prin- 
ciples of  the  constitution  of  the  state  in  preference  to  any 
acts  of  the  general  assembly,  because  those  ijrinciples  were 
ordained  by  the  people  anterior  to  the  powers  of  the  general 
assembly  and  because  those  principles  created  those  powers.  J 

Varnum  quotes  Bacon's  Abridgment  for  the  proposition 
that  "if  a  statute  ....  be  repugnant,  or  impossible  to 
"be  performed,  the  Common  law  shall  control  it,  and  ad- 
"  judge  it  to  be  void."§  He  maintains  that  the  act  of  the 
general  assembly  is  repugnant  when  it  authorizes  the  judges 
to  "proceed  to  trial  without  any  jury,  according  to  the  laws 
"  of  the  land."  The  laws  of  the  land  constitute  the  jurors 
the  triers  of  facts,  and  the  judges  the  triers  of  law  only. 

*  Varnum,  pp.  29,  28, 

t  See  page  56,  ante,  and  1  Cranch,  176-180. 

X  Varnum,  p.  29. 

2       lb.        '"  30. 


244  HISTORICAL   COMMENTARY. 

It  was  impossible  that  Judges  should  try  a  man,  without  a 
jury,  and  at  the  same  time  try  a  man  "according  to  the 
"  laws  of  the  land,"  which  certainly  secured  to  every  free- 
man a  trial  "by  the  lawful  judgment  of  his  peers."  Con- 
traries could  not  exist  and  be  executed  at  the  same  time. 
"  This  act  therefore  is  impossible  to  be  executed."* 

What  Yarnum  here  says  directly  connects  Trevett  "o. 
Weeden  with  the  traditional  language  of  the  English  law- 
books on  statutes  that  are  impossible  to  be  performed.  It 
has  been  previously  pointed  out  that  that  language  is  to  be 
traced  to  the  case  of  the  convent  seals  and  the  4th  chapter 
of  the  statute  of  Carlisle  in  Fitzherbert,  Annuity,  41.  That 
Varnum  used  the  said  language  with  important  effect  upon 
the  court  is  proved  by  Judge  Howell's  speech  to  the  legisla- 
ture of  the  state  hereinafter  quoted,  in  which  he  maintained 
that  the  statute  was  "unconstitutional,  had  not  the  force  of 
"law,  and  could  not  be  executed. "f  Thus,  links  exist  con- 
necting Trevett  v.  Weeden  with  the  case  of  the  convent  seals 
and  the  fourth  chapter  of  the  statute  of  Carlisle,  which  was 
the  first  case  in  which  a  Common  law  court  said  that  an  un- 
repealed statute  was  "  void  "  for  cause  judicially  ascertained. 
The  possibility  that  such  a  use  of  the  word  "void"  may 
have  an  origin  in  the  Canon  law  has  therefore  increased  in- 
terest to  Americans.     See  ante  pages,  176-178. 

The  constitution  of  E-hode  Island  was  in  Yarnum' s  opin- 
ion an  extremely  liberal  and  popular  system  in  which  all 
the  officers  of  government  were  elected  by  the  two  houses 
of  the  general  assembly  in  grand  committee.  Before  the 
revolution  the  king,  as  supreme  executive,  formed  the  bal- 
ance. Since  then,  the  executive  power  had  become  blended 
with  the  legislative,  for,  Rhode  Island  had  not,  like  other 
states  in  the  Union,  adopted  any  substitute  for  that  defect.  :j: 
Hence,  to  save  the  existence  of  the  constitution,  to  prevent 
the  dissolution  of  government  under  it,  and  to  keep  political 
liberty  from  coming  to  an  end,  the  judiciary  must  hold  itself 
independent  of  the  legislature.     If  it  did  not  do  so,  all  three 

*  Varnum,  pp.  31,  30. 

t      lb.        p.  38. 

X      lb.        pp.  33,  34. 


HISTORICAL   COMMENTARY.  245 

powers,  legislative,  executive  and  judicial,  would  be  blended 
in  the  general  assembly.  He  had  previously  pointed  out 
that  this  was  a  distinctive  mark  of  every  tyranny.  In  other 
words,  as  the  result  of  a  revolution  made  for  liberty  there 
was  no  free  government  at  all  in  Rhode  Island. 

Yarnum's  argument  was  not  replied  to  by  the  plaintiff's 
counsel,  who  avoided  any  discussion  of  constitutional  points. 
Merchant,  the  junior  counsel  for  the  defence,  said  but  Uttle 
in  closing."^  Channing,  the  attorney  general,  was  in  court, 
but  took  no  part  in  the  proceedings,  f  He  stated,  however, 
before  the  legislature  that  he  approved  the  action  and  con- 
duct of  the  judges  and  believed  that  "  their  determination 
"was  conformable  to  the  principles  of  constitutional  law.":t 
It  is  evident  that  the  weight  of  the  bar  of  the  state  was  on 
the  side  of  the  court  and  its  judgment. 

Tlie  judgment  of  the  court  was  "that  the  information 
"  was  not  cognizable  before  them."§  These  terms  do  not  say 
that  the  statute  was  "unconstitutional  and  so  void,"  as  is 
pointed  out  by  Judge  Howell  on  pages  38  and  39  of  Yar- 
num.  The  judgment,  however,  plainly  rejected  and  re- 
pelled the  challenged  statute.  The  bar,  the  legislature  and 
the  public  all  understood  the  reason  why  the  court  ren- 
dered such  a  judgment,  mz.^  because  the  statute  was,  as 
the  defendant's  plea  asserted,  "unconstitutional  and  so 
"void." 

The  following  constitutes  the  whole  of  the  brief  extant 
report  of  what  was  said  by  them.  || 

"Tlie  court  adjourned  to  next  morning,  upon  opening  of 
"which.  Judge  Howell,  in  a  firm,  sensible  and  judicious 
"speech,  assigned  the  reasons  which  induced  him  to  be  of 
"the  opinion  that  the  information  was  not  cognizable  by 
"the  court — declared  himself  independent  as  a  judge — the 
"penal  law  to  be  repugnant  If  and   unconstitutional — and 

*  Providence  Gazette,  as  cited, 

fVarnum,  p.  51. 

t      lb.         "  "  . 

§  Such  was  the  recorded  judgment :    See  Vamum,  page  38,  last  paragraph. 

II  Providence  Gazette  as  cited  :  Compare  American  Museum  as  cited. 

T[  "Unjust,"  in  the  Museum's  text. 


246  HISTORICAL   COMMENTARY. 

^'  therefore  gave  it  as  his  opinion  that  the  court  could  not 
''take  cognizance  of  the  information  !  Judge  Devol  was  of 
''the  same  opinion.  Judge  Tillinghast  took  notice  of  the 
"  striking  repugnancy  of  the  expressions  of  the  act,  '  With- 
"  'out  trial  by  jury,  according  to  the  laws  of  the  land'^ — 
"and  on  that  ground  gave  his  judgment  the  same  way. 
"Judge  Hazard  voted  against  taking  cognizance.  The 
"Chief  Justice  declared  the  judgment  of  the  court"^  with- 
"  out  giving  his  own  opinion." 

As  throwing  further  light  upon  the  views  of  the  judges, 
the  following  additional  matter  may  be  gained  from  the 
proceedings  in  the  case  of  the  judges  before  the  general  as- 
sembly. Soon  after  their  decision,  the  judges  were  sum- 
moned by  both  houses  of  that  body  to  attend  them  in  order 
"to  render  their  reasons  for  adjudging  an  act  of  the  gen- 
"eral  assembly  to  be  unconstitutional  and  so  void,  "f  Judge 
Howell,  in  his  speech  before  the  legislature,  "pointed  out 
"  the  objectionable  part  of  the  act  upon  which  the  informa- 
"  tion  was  founded,  and  most  clearly  demonstrated  by  a 
' '  variety  of  conclusive  arguments,  that  it  was  unconstitu- 
"  tional^  had  not  tlie  force  of  a  law^  and  could  not  he  exe- 
"  cuted.''^X  Judge  Tillinghast  said,  in  his  remark  to  the  as- 
"semblythat  he  felt  himself  perfectly  independent  while 
"moving  in  the  circle  of  his  duty."§  Judge  Hazard,  in 
his  remarks  to  the  same  body,  said  that  his  sentiments  were 
the  same  as  those  which  his  brethren  had  declared  and  that 
the  opinion  which  he  gave  at  the  trial  was  that  which  he 
thought  right,  and  that  he  still  thought  it  so.  || 

The  foregoing  proceeding  before  the  legislature  was  in 
October,  1786.  The  proceeding  was  adjourned  to  the  next 
month.  On  November  4th,  Judges  Hazard,  Tillinghast  and 
Howell  made  a  written  protest  to  the  legislature  against  the 
apprehended  design  of  dismissing  the  judges  by  a  summary 
vote.     They  acknowledge  liability  only  to  a  proper  and 

*  The  words,  "against  the  informer,"  are  here  found  in  the  Museum's  text. 
fVarnum,  p.  37. 
J       lb.        ''    38. 

I  Ih.       pp.  42, 43. 

II  lb.        p.  43. 


HISTORICAL   COMMENTARY.  247 

legal  tribunal  upon  certain  and  specific  charges,  in  other 
words,  to  formal  impeachment.  They  state  that  their  com- 
munication was  made  after  ''having  appeared  before  both 
"  houses  in  grand  committee,  and  made  full  communication 
"of  all  the  proceedings  of  the  court,  relative  to  the  case  in 
"which  said  judgment  was  rendered ;  and  having  entered 
' '  into  a  full  and  free  examination  of  the  several  parts  and 
"principles  of  the  penal  law  in  question,  and  compared 
' '  them  with  the  constitution,  or  fundamental  laws  of  the 
"state,  and  all  other  laws  operating  thereon,  which  secure 
"the  citizens  thereof  their  rights  and  privileges  ;  and  hav- 
' '  ing  established  their  observations  thereon  by  many  of  the 
^'most  approved  authorities  in  law,  as  well  as  by  the  con- 
"stitution  of  the  federal  union,  and  the  members  thereof, 
"since  the  revolution  in  this  country."* 

The  effect  of  this  protest  was  to  stop  the  pending  pro- 
ceeding of  the  legislature  against  the  judges.  No  proceed- 
ings in  impeachment  were  initiated.  The  judges  held  their 
oflSces  uninterruptedly  until  the  end  of  their  annual  terms. 
In  the  following  spring,  however,  the  general  assembly  had 
their  opportunity  for  revenge,  and  at  the  annual  election 
for  judges  chose  other  persons  to  succeed  the  brave  and 
prudent  magistrates,  who  had  vindicated  the  right  to  trial 
by  jury  by  treating  a  law  against  it  as  "unconstitutional 
"and  so  void." 

Yarnum's  pamphlet  gives  no  report  of  what  the  judges 
said  in  court,  although  it  contains  some  statement  of  what 
three  of  them  said  before  the  legislature.  The  opinions  of 
the  judges  are  to  be  found  in  the  account  in  the  American 
Museum.  Until  recently  Varnum's  pamphlet  and  the  Mu- 
seum contained  the  only  contemporary  accounts  practically 
accessible.  Five  contemporary  newspaper  accounts  have, 
however,  been  brought  to  light  by  Prof.  McMaster's  note 
in  his  History,  vol.  1,  p.  339.  One  of  these,  that  in  the 
Providence  Journal  of  October  27th,  1787,  has  been  fol- 
lowed in  this  chapter.     The  account  in  the  American  Mu- 

*Varnum,  44,  45. 


248  HISTORICAL   COMMENTARY. 

seum  is  evidently  copied  from  that  in  the  Providence  Ga- 
zette. It  only  differs  as  to  some  omissions,  which  are  of 
secondary  importance.  The  statements  of  the  judges'  opin- 
ions in  the  Gazette  and  the  Musuem  are  identical,  except 
as  to  one  word  which  has  been  noted  in  the  footnote. 


CHAPTER  XXYI. 

Of  tlie  la-w  of  Nortli  Carolina  and  tlie  case  of  Den  on 
tlie  deni.  of  Ba:3rard  and  l^ife  v,  Sins:leton. 

No.  1.  Rehearsal  of  the  case  of  Bayard  v.  Singleton  ac- 
cording to  the  report  in  Martinis  Reports. 

No.  2.  Further  information  concerning  the  case  derived 
from  other  sources. 

No.  3.  Text  of  IredelV  s  letter  of  an  Elector  printed  in 
Newbern  on  August  17th,  1786. 

No.  4.  Text  of  the  letter  of  James  Iredell  to  Richard 
Dohhs  Spaight  dated  August  26th,  1787. 

No.  5.  Further  reflections  upon  the  case  of  Bayard  v. 
Singleton. 

No.  6.  Of  the  date  when  the  decision  in  Bayard  v.  Sin- 
gleton became  Icnown  to  the  Framers^  convention. 


The  cause  of  Den  on  the  dem.  of  Bayard  and  wife  v.  Sin- 
gleton is  the  first  reported  case  in  which  an  act  of  a  legisla- 
ture was  decided  to  be  contrary  to  a  written  constitution. 
It  arose  in  North  Carolina  before  the  Superior  Court  of  that 
state.  The  date  of  the  decision  was  in  May  Term,  1787. 
May  Term  comprehended  the  last  ten  working  days  of  the 
month  of  May. 


HISTORICAL   COMMENTARY.  249 

No.  1. 

Rehearsal  of  the  case  of  Bayard  v.  Singleton  according 
to  the  report  in  Martinis  Reports.'^ 

Phis  cause  was  an  action  of  ejectment  for  the  recovery  of 
a  lot  of  ground  with  a  house  and  a  wharf,  in  the  town  of 
Newbern  in  North  Carolina.  The  defendant  held  under  a 
title  derived  from  the  state  of  North  Carolina,  by  a  deed 
from  a  superintendent  commissioner  of  confiscated  estates. 
Nash  for  the  defendant  moved  that  the  suit  be  dismissed 
according  to  an  act  for  securing  and  quieting  the  possession 
of  the  purchasers  of  property  sold  by  the  commissioners  of 
forfeited  estates.  This  act  required  the  courts,  in  all  cases 
in  which  the  defendant  made  affidavit  that  he  held  the  dis- 
puted property  under  a  sale  from  a  commissioner  of  for- 
feited estates,  to  dismiss  the  suit  on  motion.  Such  an  affi- 
davit had  been  filed  by  the  defendant. 

The  plaintiffs  claimed  title  under  a  deed  from  Cornell, 
who  was  the  father  of  Mrs.  Bayard,  and  whose  estates  had 
been  confiscated.  The  plaintiffs  were* not  citizens  of  North 
Carolina,  but  of  another  state  of  the  Union.  Cornell  had 
been  a  colonist  of  North  Carolina,  who  refused  to  become  a 
citizen  of  the  state,  and  lived  and  died  a  British  subject. 

Nash's  motion  brought  on  '4ong  arguments  from  the 
''counsel  on  each  side,  on  constitutional  points." 

The  court  made  a  few  observations  on  the  constitution 
and  system  of  government,  and  wished  to  be  advised.  Nu- 
merous like  suits  were  involved  in  the  fate  of  this 

The  foregoing  proceedings  took  place  at  Newbern  in  May, 
1786.  In  May,  1787,  at  the  same  place,  Nash's  motion  was 
resumed  and  a  very  lengthy  debate  from  the  bar  took  place. 
Whereupon  the  court  recommended  the  parties  to  consent 
to  *'a  fair  decision  of  the  property  in  question,  by  a  jury 
''according  to  the  common  law  of  the  land."  This  recom- 
mendation, however,  was  without  effect.  Another  mode 
was  proposed  for  putting  the  matter  in  controversy  on  "a 
"  more  constitutional  footing  for  a  decision,"  than  that  of 

*  Martin's  Reports  (first  division)  pp.  48-52.     Second  Edition,  I.  pp.  42-48. 


250  HISTORICAL   COMMENT AHY. 

a  motion  under  the  aforesaid  act.  This  proposal  also  must 
have  failed. 

' '  The  court  then,  after  every  reasonable  endeavour  had 
'  been  used  in  vain  for  avoiding  a  disagreeable  difference 
'  between  the  legislature  and  the  judicial  powers  of  the 
'  state,  at  length  with  much  apparent  reluctance,  but  with 
'  great  deliberation  and  firmness,  gave  their  opinion  sepa- 
'rately,  but  unanimously  for  overruling  the  aforemen- 
'  tioned  motion  for  the  dismission  of  tlie  said  suits. 

"In  the  course  of  which  the  judges  observed,  that  the 
'  obligation  of  their  oaths,  and  the  duty  of  their  office  re- 
'  quired  them  in  that  situation,  to  give  their  opinion  on 
'  that  important  and  momentous  subject ;  and  that  not- 
'  withstanding  the  great  reluctance  they  might  feel  against 
'  involving  themselves  in  a  dispute  with  the  legislature  of 
'  the  state,  yet  no  object  of  concern  or  respect  could  come 
'  in  competition  or  authorize  them  to  dispense  with  the 
'  duty  they  owed  the  public,  in  consequence  of  the  trust 
'  they  were  invested  with  under  the  solemnity  of  their 
'  oaths. 

"Tliat  they  therefore  were  bound  to  declare  tliat  they 
'  considered,  that  whatever  disabilities  the  persons  under 
'  whom  the  plaintiffs  were  said  to  derive  their  titles,  might 
'  justly  have  incurred,  against  their  maintaining  or  prose- 
'  cuting  any  suits  in  the  Courts  of  the  state  ;  yet  such  dis- 
'  abilities  in  their  nature  were  merely  personal,  and  not  by 
'  any  means  capable  of  being  transferred  to  the  present 
'  plaintiffs,  either  by  descent  or  purchase  ;  and  that  these 
'  plaintiffs  being  citizens  of  one  of  the  United  States,  are 
'  citizens  of  this  state,  by  the  confederation  of  all  the  states  ; 
'  which  is  to  be  taken  as  a  part  of  the  law  of  the  land,  un- 
'  repealable  by  any  act  of  the  General  Assembly. 

' '  That  by  the  constitution  every  citizen  had  undoubtedly 
'  a  right  to  a  decision  of  his  property  by  a  trial  by  jury. 
'  For  that  if  the  legislature  could  take  away  tliis  right,  and 
'  require  him  to  stand  condemned  in  his  property  without 
'  a  trial,  it  might  with  as  much  authority  require  his  life 
'to  be  taken  away  without  a  trial  by  jury,  and  that  he 
'  should  stand  condemned  to  die,  without  the  formality  of 


HISTORICAL   COMMENTARY.  251 

"  any  trial  at  all :  that  if  the  members  of  the  General  As- 
''sembly  could  do  this,  they  might  with  equal  authority, 
"not  only  render  themselves  the  legislators  of  the  state 
* '  for  life,  without  any  further  election  by  the  people,  from 
"thence  transmit  the  dignity  and  authority  of  legislation 
"down  to  their  heirs  male  forever. 

"  But  that  it  was  clear,  that  no  act  they  could  pass,  could 
^ '  by  any  means  repeal  or  alter  the  constitution,  because  if 
"they  could  do  this,  they  would  at  the  same  instant  of 
"time,  destroy  their  own  existence  as  a  legislature,  and  dis- 
"  solve  the  government  thereby  established.  Consequently 
"the  constitution  (which  the  judicial  power  was  bound  to 
"take  notice  of  as  much  as  any  other  law  whatever),  stand- 
"  ing  in  full  force  as  the  fundamental  law  of  the  land,  not- 
"  withstanding  the  act  on  which  the  present  motion  was 
"  grounded,  the  same  act  must  of  course^  in  that  instance^ 
"  stand  as  abrogated  and  without  effecf'' 

In  consequence  of  this  decision,  there  was  a  trial  by  jury 
in  the  cause  in  November  Term,  1787,  in  which  the  jury 
found  a  verdict  for  the  defendant 

No.  2. 

Further  information  concerning  the  case  derived  from 
other  sources. 

■  The  senior  counsel  for  the  plaintiff,  the  party  in  whose  in- 
t^est  the  statute  was  rejected  as  unconstitutional,  was  Ire- 
dell, afterwards  judge  of  the  Supreme  Court  of  the  United 
States.  Another  of  the  plaintiff's  counsel  was  William  R. 
Davie,  one  of  Framers  of  the  constitution,  who  was  ac- 
tually attending  the  convention  in  Philadelphia  when  the 
above  decision  was  made  at  Newbern  in  May,  1787. 

The  report  in  Martin' s  Reports  was  made  by  Judge  Spen- 
cer, who  sat  in  the  case.  He  does  not  report  the  arguments 
of  counsel.  There  is,  however,  no  difficulty  in  ascertaining 
what  must  have  been  said  by  Iredell,  who  was  leading 
spirit  in  the  litigation  and  in  the  great  question  involved 
therein.     It  was  he,  who  the  year  before  had  prepared  the 


252  HISTORICAL   COMMENTARY. 

way  for  such  a  litigation  by  an  elaborate  public  letter  dis- 
cussing the  great  question,  which  was  published  at  Newbern 
on  August  17th,  1786. 

Thus  the  doctrine  of  the  case  has  a  history  previous  to  the 
decision  in  May  Term,  1787.  It  had  also  a  subsequent  his- 
tory which  caused  Iredell  to  write  a  second  important  paper 
concerning  it.  The  decision  of  the  Superior  Court  was  an 
act  of  great  civic  courage.  It  created  much  excitement  and 
was  received  with  severe  adverse  criticism  in  North  Carolina, 
where  it  was  known  in  public  discussion  as  the  Newbem 
case.  The  three  courageous  magistrates  who  composed  the 
court  were  Samuel  Ashe,  Samuel  Spencer,  and  John  Wil- 
liams. President  Battle  in  his  history  of  the  court  ob- 
serves :  ^ 

"  These,  our  earliest  judges,  are  entitled  to  the  eminent 
'  distinction  of  contesting  with  Rhode  Island  the  claim  of 
'  being  the  first  in  the  United  States  to  decide  that  the 
'courts  have. the  power  and  duty  to  declare  an  act  of  the 
'  legislature,  which  in  their  opinion  is  unconstitutional,  to 
'  be  null  and  void.  The  doctrine  is  so  familiar  to  us,  so 
'  universally  acquiesced  in,  that  it  is  difficult  for  us  to  rea- 
'  lize  that  when  it  was  first  mooted,  the  judges  who  had  the 
'  courage  to  declare  it  were  fiercely  denounced  as  usurpers 
'  of  power.  Spaight,  afterwards  governor,  voiced  a  com- 
'  mon  notion  when  he  declared  that  '  the  state  was  subject 
'  '  to  the  three  individuals,  who  united  in  their  own  persons 
'  'the  legislative  and  judicial i)ower,  which  no  monarch  in 
* '  England  enjoys,  which  would  be  more  despotic  than  the 
'  '  Roman  triumvirate  and  equally  insufferable . '  .  .  .  As  I 
'  have  mentioned,  the  action  of  the  court  was  the  founda- 
'  tion  of  one  of  the  charges  brought  by  Hay  [in  the  legisla- 
'  ture].  He  accused  them  with  dispensing  with  a  law — the 
'  'Xewbern  case.'  .  .  .  The  judges  were  eventually  sus- 
'tained  by  public  opinion." 

One  of  the  most  important  of  the  adverse  critics  of  the 
decision  was  Richard  Dobbs  Spaight,  who  opposed  it  from 
Philadelphia,  where  he  was  attending  the  Framers'  conven- 

*  103  North  Carolina  Reports,  pp.  472,  473. 


HISTORICAL   COMMENTARY.  253 

tion.     To  him  there  and  then  Iredell  addressed  an  elaborate 
letter  in  defence  of  the  decision  and  its  doctrine. 

Iredell's  public  letter  of  August  17th,  1786,  and  his  letter 
to  Spaight  of  August  26th,  1787,  are  legal  arguments  and 
historical  papers  of  great  ability  and  grave  importance. 
They  are  printed  in  his  biography.  As  that  work  is  so  rare 
as  to  be  obtainable  only  with  difficulty  and  delay,  these 
documents  are  printed  in  full.  From  them  what  Iredell  said 
in  argument  before  the  court  may  easily  be  inferred. 

No.  3. 

Text  of  IredelVs  Letter  of  an  Elector  printed  at  New- 
hern  on  August  17th^  1786. '^ 

"To  the  Public :  As  the  question  concerning  the  power 
"of  the  Assembly  deeply  concerns  every  man  in  the  State, 
"  I  shall  make  no  apology  for  delivering  my  sentiments  upon 
"it.  They  are  indeed  only  the  sentiments  of  an  obscure 
"  elector,  but  one  who,  he  trusts,  has  rights  that  he  as  much 
"values,  though  with  less  ability  to  defend  them,  as  the 
"  proudest  member  of  Assembly  whatever. 

"  I  have  not  lived  so  short  a  time  in  the  State,  nor  with  so 
**  little  interest  in  its  concerns,  as  to  forget  the  extreme 
"  anxiety  with  which  all  of  us  were  agitated  in  forming  the 
"  constitution,  a  constitution  which  we  considered  as  the 
"  fundamental  basis  of  our  government,  unalterable,  but  by 
"the  same  high  power  which  established  it,  and  therefore 
"  to  be  deliberated  on  with  the  greatest  caution,  because  if 
"it  contained  any  evil  principle,  the  government  fonned 
"under  it  must  be  annihilated  before  the  evil  could  be  cor- 
"rected.  It  was,  of  course,  to  be  considered  how  to  im- 
"pose  restrictions  on  the  legislature,  that  might  still  leave 
"it  free  to  all  useful  purposes,  but  at  the  same  time  guard 
' '  against  the  abuse  of  unlimited  power,  which  was  not  to 
"be  trusted,  without  the  most  imminent  danger,  to  any 

*  Reprinted  from  the  Life  and  Correspondence  of  James  Iredell,  by  G.  J. 
McRee,  vol.  2,  pp.  145-149. 


254  HISTORICAL   COMMENTARY. 

'  man  or  body  of  men  on  earth.  We  liad  not  only  been 
'  sickened  and  disgusted  for  years  with  the  high  and  almost 
'impious  language  of  Great  Britain,  of  the  omnipotent 
'  power  of  the  British  Parliament,  but  had  severely  smarted 
'  under  its  effects.  We  felt  in  all  its  rigor  the  mischiefs  of 
'  an  absolute  and  unbounded  authority,  claimed  by  so  weak 
'  a  creature  as  man,  and  should  have  been  guilty  of  the 
•  basest  breach  of  trust,  as  well  as  the  grossest  folly,  if  in 
'  the  same  moment  when  we  spurned  at  the  insolent  des- 
'pot Ism  of  Great  Britain,  we  had  established  a  despotic 
'  power  ourselves.  Theories  were  nothing  to  us,  opposed 
'  to  our  own  severe  experience.  We  were  not  ignorant  of 
'  the  theory  of  the  necessity  of  the  legislature  being  abso- 
'  lute  in  all  cases,  because  it  was  the  great  ground  of  the 
'British  pretensions.  But  this  was  a  mere  speculative 
'  principle,  which  men  at  ease  and  leisure  thought  proper 
'  to  assume.  When  we  were  at  liberty  to  form  a  govern- 
'  ment  as  we  thought  best,  without  regard  to  that  or  any 
'  theoretical  principle  we  did  not  approve  of,  we  decisively 
'  gave  our  sentiments  against  it,  being  willing  to  run  all  the 
'  risks  of  a  government  to  be  conducted  on  the  principles 
'  then  laid  as  the  basis  of  it.  The  instance  was  new  in  the 
'  annals  of  mankind.  No  people  had  ever  before  deliber- 
'  ately  met  for  so  great  a  purpose.  Other  governments  have 
'  been  established  by  chance,  caprice,  or  mere  brutal  force. 
'  Ours,  thank  God,  sprang  from  the  deliberate  voice  of  the 
'people.  We  provided,  or  meant  to  provide  (God  grant 
'  our  purpose  may  not  be  defeated),  for  the  security  of  every 
'  individual,  as  well  as  a  fluctuating  majority  of  the  people. 
'  We  knew  the  value  of  liberty  too  well,  to  suffer  it  to  de- 
'  pend  on  the  capricious  voice  of  x)opular  favor,  easily  led 
'  astray  by  designing  men,  and  courted  for  insidious  pur- 
'  poses.  Nor  could  we  regard,  without  contempt,  a  theory 
'which  required  a  greater  authority  in  man  than  (with 
'  reverence  be  it  spoken)  exists  even  in  the  Supreme  Being. 
'For  His  power  is  not  altogether  absolute — His  infinite 
'power  is  limited  by  His  infinite  wisdom. 

"I  have  therefore  no  doubt,  but  that  the  power  of  the 
''Assembly  is  limited  and  defined  by  the  constitution.     It 


HISTORICAL   COMMENTARY.  255 

^ '  is  a  creature  of  the  constitution.  (I  hojie  this  is  an  ex- 
"pression  not  prosecutable.)  The  people  have  chosen  to 
"be  governed  under  such  and  such  principles.  They  have 
"not  chosen  to  be  governed,  or  promised  to  submit  upon 
"any  other  ;  and  the  Assembly  have  no  more  right  to  obe- 
"dience  on  other  terms,  than  any  different  power  on  earth 
"has  a  right  to  govern  us  ;  for  we  have  as  much  agreed  to 
"be  governed  by  the  Turkish  Divan  as  by  our  own  General 
"Assembly,  otherwise  than  on  the  express  terms  prescribed. 

"These  are  consequences  that  seem  so  natural,  and  in- 
"deed  so  irresistible,  that  I  do  not  observe  they  have  been 
"much  contested.  The  great  argument  is,  that  though  the 
"  Assembly  have  not  a  rigM  to  violate  the  constitution,  yet 
"if  they  in  fact  do  so,  the  only  remedy  is,  either  by  a 
"humble  petition  that  the  law  may  be  repealed,  or  a  uni- 
"  versal  resistance  of  the  people.  But  that  in  the  meantime, 
"  their  act,  whatever  it  is,  is  to  be  obeyed  as  a  law  ;  for  the 
"judicial  power  is  not  to  presume  to  question  the  power  of 
"  an  act  of  Assembly. 

"To  those  positions,  notunconfidently  urged,  I  answer  : — 

"1.  That  the  remedy  by  petition  implies  a  supposition, 
**that  the  electors  hold  their  rights  by  \\\.q  favour  of  their 
^''representatives.  The  mere  stating  of  this  is  surely  sufR- 
"  cient  to  excite  any  man's  indignation.  What !  if  the  As- 
"  sembly  say,  we  shall  elect  only  once  in  two  years,  instead 
"of  electing  annually,  are  we  to  petition  them  to  repeal 
"this  law  ?  to  request  that  they  will  be  graciously  pleased 
"not  to  be  our  tyrants,  but  to  allow  us  the  benefit  of  the 
"government  we  ourselves  have  chosen,  and  under  which 
"they  alone  derive  all  their  authority  \ 

' '  But  2.  The  whole  people  may  resist.  A  dreadful  ex- 
"  pedient  indeed.  We  well  know  how  difficult  it  is  to  ex- 
' '  cite  the  resistance  of  a  w^hole  people,  and  what  a  calami- 
"tous  contingency,  at  best,  this  is  to  be  reduced  to.  But 
"it  is  a  sufficient  answer,  that  nothing  can  be  powerful 
"enough  to  effect  such  a  purpose  in  a  government  like 
"ours,  but  universal  oppression.  A  thousand  injuries 
"may  be  suffered,  and  many  hundreds  ruined,  before  this 
"  can  be  brought  about.     A  majority  may  see  A.  B.,  C.  D., 


256  HISTORICAL   COMMENTARY. 

and  E.  F.,  and  hundreds  of  others  quietly  injured  one 
after  another,  and  not  stir  a  step  towards  a  civil  war. 
Let  any  man  then  ask  himself,  Suppose  a  law  is  passed 
by  which  I  am  ruined !  Have  I  interest  enough  to  over- 
turn the  government  of  my  country  ?  If  I  have,  we  still 
may  be  a  ruined  people,  and  myself  ruined  among  the 
rest.  If  I  have  not,  upon  what  footing  do  my  liberties 
depend  ?  The  pleasure  of  a  majority  of  the  Assembly  ? 
God  forbid  !  How  many  things  have  been  done  by  ma- 
jorities of  a  large  body  in  lieat  and  passion^  that  they 
themselves  afterwards  have  repented  of  !  Besides,  would 
the  minority  choose  to  put  themselves  in  the  power  of  a 
majority  ?  Few  men,  I  presume,  are  always  in  a  major- 
ity. None,  therefore,  could  have  even  a  chance  of  being 
secure,  but  sycophants  that  will  for  ever  sacrifice  reason, 
conscience,  and  duty,  to  the  preservation  of  a  temporary 
popular  favor.  Will  this  not  put  an  end  to  all  freedom 
of  deliberation,  to  all  manly  spirit,  and  prove  the  utter 
extinction  of  all  real  liberty  ? 

"  But  this  resource  is  evidently  derived  from  the  princi- 
ple of '2^?z5o2^7i(ie6Z  legislative  power ^  that  I  have  noticed 
before,  and  that  our  constitution  reprobates.  In  England 
they  are  in  this  condition.  In  England,  therefore,  they 
are  less  free  than  we  are.  Every  parliament  in  that  coun- 
try chosen  for  three  years,  continued  itself  for  seven. 
This  is  an  absolute  fact,  that  happened  long  within  the 
present  century.  Would  this  be  a  fit  precedent  for  us  ? 
May  our  Assembly  do  so,  because  their  Parliament  did  ? 
May  our  governor  have  a  negative  on  the  laws,  because 
he  has  a  faint  image  of  monarchial  power  ?  As  little,  I 
trust,  is  the  government  of  Great  Britain  to  influence  in 
other  things,  equally  inconsistent  with  our  condition,  and 
equally  preposterous  as  these. 

'' These  two  remedies  then  being  rejected,  it  remains  to 
be  inquired  whether  the  judicial  power  hath  any  author- 
ity to  interfere  in  such  a  case.  The  duty  of  that  power, 
I  conceive,  in  all  cases,  is  to  decide  according  to  the  laws 
of  the  State.  It  will  not  be  denied,  I  suppose,  that  the 
constitution  is  a  law  of  the  State^  as  well  as  an  act  of  As. 


HISTORICAL   COMMENTARY.  257 

"  sembly,  witli  this  difference  only,  that  it  is  the  funda- 
'' mental  law,  and  unalterable  by  tlie  legislature,  which  de- 
prives all  its  power  from  it.  One  act  of  Assembly  may  re- 
'*  peal  another  act  of  Assembly.  For  this  reason,  the  latter 
"act  is  to  be  obeyed,  and  not  the  former.  An  act  of  As- 
"  sembly  cannot  repeal  the  constitution,  or  any  part  of  it. 
"For  that  reason,  an  act  of  Assembly,  inconsistent  with 
"the  constitution,  is  noid,  and  cannot  be  obeyed,  without 
"disobeying  the  superior  law  to  which  we  were  previously 
"  and  irrevocably  bound.  The  judges,  therefore,  must  take 
"care  at  their  peril,  that  every  act  of  Assembly  they  pre- 
"  sume  to  enforce  is  warranted  by  the  constitution,  since  if 
"  it  is  not,  they  act  without  lawful  authority.  This  is  not 
"a  usurped  or  a  discretionary  power,  but  one  inevitably 
"  resulting  from  the  constitution  of  their  office,  they  being 
"judges /or  tJie  benefit  of  the  whole  people^  not  mere  ser- 
^'vants  of  the  Assembly.  And  the  danger,  about  which 
"there  is  so  much  alarm,  attending  the  exercise  of  this 
"power  is,  in  my  opinion,  the  least  that  can  be  imagined 
* '  to  attend  the  exercise  of  any  important  power  whatever. 
"For  tlie  judges,  besides  the  natural  desire  which  must  be 
"entertained  by  every  man  living  in  a  popular  government, 
"  of  securing  the  favor  qf  the  people,  are  in  fact  dependent 
"on  the  Assembly;  for  though  their  duration  in  office  is 
"permanent,  at  least  as  long  as  the  act  is  in  being  which 
"establishes  their  court,  their  salaries  are  precarious ; 
"and  in  fact  are  they  only  nominally  independent  in  point 
"of  station,  when  the  Assembly  may  every  session  deter- 
' '  mine  how  much  they  shall  have  to  subsist  upon.  Did 
"any  man  in  England,  previous  to  the  Revolution,  appre- 
"hend  any  injury  to  the  prerogative  from  the  judges  of 
"those  days?  They  depended  indeed,  both  for  salary  and 
"place,  oA  the  breath  of  the  crown.  But  the  dependence 
"here,  I  am  persuaded,  will  in  general  be  found  equally 
' '  effectual,  at  least  to  prevent  a  wanton  abuse  of  power, 
"and,  it  is  much  to  be  feared,  may  in  some  instances  pro- 
"duce  an  actual  bias  the  other  way,  which,  in  my  humble 
"opinion,  is  the  great  danger  to  be  apprehended.  It  may 
17  C. 


258  HISTORICAL   COMMENTARY. 

^'also  be  observed,  that  if  the  judges  should  be  disposed  to 
*' abuse  their  power,  merely  for  the  sake  of  the  abuse,  they 
^ '  have  means  enough  of  doing  so,  for  every  act  of  Assem- 
-'^  bly  may  occasionally  come  under  their  judgment  in  one 
"'f shape  or  other,  and  those  acts  may  be  wilfully  miscon- 
^•*  strued  as  well  as  the  constitution. 

^'  But  it  is  said,  if  the  judges  have  this  power,  so  have  the 
*  county  courts.  I  admit  it.  The  county  courts,  in  the 
'  exercise  of  equal  judicial  power,  must  have  equal  autho- 
*rity.  But  every  argument  in  respect  of  the  judges  (ex- 
'  cept  their  dependence  for  salary),  and  other  obvious  ones, 
'  occur  in  great  force  against  this  danger,  besides  the  liberty 
'  of  appeal,  which  ultimately  rests  everything,  almost, 
'  with  the  superior  courts.  The  objection,  however,  urged 
'by  some  persons,  that  sheriffs  and  other  ministerial 
'  officers  must  exercise  their  judgment  too,  does  not  apply. 
'  For  if  the  power  of  judging  rests  with  the  courts^  their 
'decision  is  final  as  to  the  subject  matter.  Did  ever  a 
'  sheriff  refuse  to  hang  a  man,  because  he  thought  he  was 
'  unjustly  convicted  of  murder  ? 

"These  are  a  few  observations  that  have  occcured  to  me 
'on  this  subject.  They  are  given  by  a  plain  man,  unambi- 
'tious  of  power,  but  sincerely  and  warmly  interested  in 
'  the  prosperity  of  his  country ;  feeling  every  respect  for 
'  the  constitutional  authority  of  the  legislature,  which,  in 
'his  opinion,  is  great  enough  to  satisfy  an  ambitious,  as 
'  well  as  to  support  the  efforts  of  a  public  spirited  mind, 
'but  a  determined  enemy  on  all  occasions  to  arbitrary 
'  power,  in  every  shape  whatsoever ;  and  reverencing,  be- 
'  yond  expression,  that  constitution  by  which  he  holds  al] 
'  that  is  dear  to  him  in  life. 

"An  Elector." 


HISTORICAL   COMMENTARY.  259 

No.  4. 

Text  of  IredelVs  Letter  to  Richard  Dolibs  Spaight  dated 
August  26th,  1787* 

"  August  26th,  1787.  ...  In  regard  to  the  late  decision  at 
^  Newbern,  I  confess  it  has  ever  been  my  opinion,  that  an 
'  act  inconsistent  with  the  Constitution  was  void  ;  and  that 
'  the  judges,  consistently  with  their  duties,  could  not  carry 
'it  into  effect.  The  Constitution  appears  to  me  to  be  a 
'  fundamental  law,  limiting  the  powers  of  the  Legislature,, 
'and  with  which  every  exercise  of  those  powers  must, 
'  necessarily,  be  compared.  Without  an  express  Constitu- 
'tion  the  powers  of  the  Legislature  would  undoubtedly 
'have  been  absolute  (as  the  Parliament  in  Great  Britain  is 
'held  to  be),  and  any  act  passed,  not  inconsistent  with 
'  natural  justice  (for  that  curb  is  avowed  by  the  judges 
'  even  in  England),  would  have  been  binding  on  the  people. 
'  The  experience  of  the  evils  which  the  American  war  fully 
'disclosed,  attending  an  absolute  power  in  a  legislative 
'  body,  suggested  the  propriety  of  a  real,  original  contract 
'  between  the  people  and  their  future  Government,  such, 
'  perhaps,  as  there  has  been  no  instance  of  in  the  world  but 
'  in  America.  Had  not  this  been  the  case,  bills  of  attain- 
'  der,  and  other  acts  of  party  violence,  might  have  ruined 
'  many  worthy  individuals  here,  as  they  have  frequently 
'  done  in  England,  where  such  things  are  much  oftener  the 
'  acts  of  a  party  than  the  result  of  a  fair  judicial  inquiry. 
'  In  a  republican  Government  (as  I  conceive)  individual 
'  liberty  is  a  matter  of  the  utmost  moment,  as,  if  there  be 
'  no  check  upon  the  public  passions,  it  is  in  the  greatest 
'  danger.  The  majority  having  the  rule  in  their  own  liands, 
'may  take  care  of  themselves  ;  but  in  what  condition  are 
'  the  minority,  if  the  power  of  the  other  is  without  limit  ? 
'These  considerations,  I  suppose,  or  similar  ones,  occa- 
'  sioned  such  express  provisions  for  the  personal  liberty  of 

*  Reprinted  from  Life  and  Correspondence  of  Iredell,  vol.  2,  pp.  172-176. 
Compare  Spaight's  Letter  to  Iredell,  which  is  printed  on  pages  169,  170  of  the 
same  volume,  and  reprinted  in  Appendix  No.  6  of  this  Essay. 


260  HISTORICAL   COMMETTTARY. 

each  citizen,  which  the  citizens,  when  they  formed 
the  Constitution,  chose  to  reserve  as  an  unalienated 
right,  and  not  to  leave  at  the  mercy  of  any  Assembly 
whatever.  The  restriction  might  be  attended  with 
inconvenience ;  but  they  chose  to  risk  the  inconve- 
nience, for  the  sake  of  the  advantage  ;  and  in  every  trans- 
action we  must  act  in  the  same  manner :  we  must  choose 
between  evils  of  some  sort  or  other  :  the  imperfection  of 
man  can  never  keep  entirely  clear  of  all.  The  Constitu- 
tion, therefore,  being  a  fundamental  law^  and  a  law  in 
writing  of  the  solemn  nature  I  have  mentioned  (which  is 
the  light  in  which  it  strikes  me),  the  judicial  power,  in  the 
exercise  of  their  authority,  must  take  notice  of  it  as  the 
groundwork  of  that  as  well  as  of  all  other  authority  ; 
and  as  no  article  of  the  Constitution  can  be  repealed  by  a 
Legislature,  which  derives  its  whole  power  from  it,  it  fol- 
lows either  that  t^e  fundamental  unrepeatable  law  must 
be  obeyed,  by  the  rejection  of  an  act  unwarranted  by  and 
inconsistent  with  it,  or  you  must  obey  an  act  founded  on 
an  authority  not  given  by  the  people,  and  to  which,  there- 
fore, the  people  owe  no  obedience.  It  is  not  that  the 
judges  are  appointed  arbiters,  and  to  determine  as  it  were 
upon  any  application,  whether  the  Assembly  have  or  have 
not  violated  the  Constitution  ;  but  when  an  act  is  neces- 
sarily brought  in  judgment  before  them,  they  must,  un- 
avoidably, determine  one  way  or  another.  It  is  doubted 
whether  a  subsequent  law  repeals  a  former  one,  in  a  case 
judicially  in  question  ;  the  judges  must  decide  this  ;  and 
yet  it  might  be  said,  if  the  Legislature  meant  it  a  repeal, 
and  the  judges  determined  it  otherwise,  they  exercised  a 
negatiM  on  the  Legislature  in  resolving  to  keep  a  law  in 
force  which  the  Assembly  had  annihilated.  This  kind  of 
objection,  if  apx)licable  at  all,  will  reach  all  judicial  power 
whatever,  since  upon  every  abuse  of  it  (and  there  is  no 
power  but  what  is  liable  to  abuse)  a  similar  inference  may 
be  drawn  ;  but  when  once  you  establish  the  necessary 
existence  of  any  power ^  the  argument  as  to  abuse  ceases 
to  destroy  its  validity,  though  in  a  doubtful  matter  it 
may  be  of  great  weight.     Suppose,  therefore,  the  Assem- 


HISTORICAL   COMMENTARY.  261 

'bly  should  pass  an  act,  declaring  that  in  future  in  all 
'  criminal  trials  the  trial  by  jury  should  be  abolished,  and 
'  the  court  alone  should  determine.  The  Attorney- General 
'  indicts  ;  the  indictment  is  found  ;  the  criminal  is  arraigned, 
'  and  the  Attorney-General  requires  the  trial  to  come  on. 
'  The  criminal  objects,  alleging  that  by  the  Constitution  all 
^  the  citizens  in  such  cases  are  entitled  to  a  trial  by  jury  ; 
'  and  that  the  Assembly  have  no  right  to  alter  any  part  of 
'  the  Constitution;  and  that  therefore  the  act  appointing  the 
'  trial  by  the  court  is  void.  Must  not  the  court  determine 
^  some  way  or  other,  whether  the  man  shall  be  tried  or  not  ? 
'  Must  not  they  say  whether  they  will  obey  the  Constitu- 
^  tion  or  an  act  inconsistent  with  it  ?  So — suppose  a  still 
'  stronger  case,  that  the  Assembly  should  repeal  the  law 
'  naming  the  day  of  election,  (for  that  is  not  named  in  the 
'  Constitution,)  and  adjourn  to  a  day  beyond  it,  and  pass 
'  acts,  and  these  acts  be  attempted  to  be  enforced  in  the 
'  courts.  Must  not  the  court  decide  they  will  obey  such 
'  acts  or  no  ?  And  would  it  be  approved  of  (except  by  a 
'  majority  of  the  de  facto  Assembly)  if  they  should  say  ; 
' '  We  cannot  presume  to  declare  that  the  Assembly,  who 
' '  were  chosen  for  one  year,  have  exceeded  their  authority 
'  'by  acting  after  the  year  expired.'  It  really  appears  to 
'  me,  the  exercise  of  the  power  is  unavoidable,  the  Constitu- 
'  tion  not  being  a  mere  imaginary  thing,  about  which  ten 
'  thousand  different  opinions  may  be  formed,  but  a  written 
'  document  to  which  all  may  have  recourse,  and  to  which, 
'therefore,  the  judges  cannot  wilfully  blind  themselves. 
'  This  seems  also  to  have  been  the  idea  of  some  of  the  early 
'  Assemblies  under  the  Constitution,  since,  in  the  oath  of 
'  allegiance  are  these  expressions  :  '  I,  A.  B.,  do  sincerely 
' '  promise  and  swear,  that  I  will  be  faithful  and  bear  true 
'  'allegiance  to  the  State  of  North  Carolina,  and  to  the 
'  '  ];)owers  and  authorities  which  are  or  may  be  established 
'  '  for  the  government  thereof,  not  inconsistent  with  the 
' '  Constitution.^  (Act  of  Nov.  1777.)  In  any  other  light 
'  than  as  I  have  stated  it,  the  greater  part  of  the  provisions 
'  of  the  Constitution  would  appear  to  me  to  be  ridiculous, 
'  since  in  my  opinion  nothing  could  be  more  so  than  for  the 


262  HISTORICAL   COMMENTARY. 

"representatives  of  a  people  solemnly  assembled  to  form  a 
"Constitution,  to  set  down  a  number  of  political  dogmas, 
"  wliich  might  or  might  not  be  regarded  ;  whereas  it  must 
"have  been  intended,  as  I  conceive,  that  it  should  be  a  sys- 
"tem  of  authority,  not  depending  on  the  casual  whim  or 
"accidental  ideas  of  a  majority  either  in  or  out  of  doors  for 
"the  time  being  ;  but  to  remain  in  force  until  by  a  similar 
"  appointment  of  deputies  specially  appointed  for  the  same 
"important  purpose  ;  and  alterations  should  be  with  equal 
* '  solemnity  and  deliberation  made.  And  this,  I  apprehend, 
"must  be  the  necessary  consequence,  since  surely  equal  au- 
"thority  is  required  to  repeal  as  to  enact.  That  such  a 
"  power  in  the  Judge  may  be  abused  is  very  certain  ;  that 
"it  will  be,  is  not  very  probable.  In  the  first  place,  in  a, 
"  democratical  government  like  ours,  it  is  the  interest  of 
"  every  man  ambitious  of  public  distinction  to  make  him- 
"  self  pleasing  to  the  people.  This  is  so  much  the  case,  that 
"there  is  great  danger  of  men  sacrificing  their  honor  to 
"  their  popularity,  if  their  principles  and  firmness  of  mind 
"are  not  of  a  texture  to  keep  them  steady  in  an  honorable 
"course.  It  can  be  no  man's  interest  certainly  to  make 
"himself  odious  to  the  people  by  giving  unnecessary  and 
"  wanton  oft'ence.  It  is  also  to  be  considered,  that  though 
"the  judges  are  permanent  in  station  (at  least  as  long  as 
"the  Act  of  their  appointment  is  in  force^),  yet,  as  their 
"  salaries  are  during  pleasure,  they  are  in  fact  dependent  on 
"the  Assembly,  few  men  likely  to  be  judges  being  rich 
"enough  to  consider  them  as  a  trifle.  Besides,  if  they  are 
"disposed  by  a  gross  abuse  of  power  (for  the  mere  pleasure 
"  of  abusing  it)  to  put  their  7iegatives  on  our  laws  by  giv- 
"ing  them  a  false  construction,  cannot  they  do  this  every 
"  day  with  other  Acts  of  Assembly  (few  of  which  I  believe 
"are  more  exempt  from  cavil  than  any  article  of  the  Consti- 
"tution)?  So  that  it  really  seems  to  me,  the  danger  is  the 
"  most  chimerical  that  can  be  supposed  of  this  power  being 
"abused  ;  and  if  you  had  seen  as  I  did,  with  what  infinite 
"reluctance  the  judges  came  to  this  decision,  what  pains 
"  they  took  by  proposing  expedients  to  obviate  its  necessity, 

*  I  mean  the  Act  constituting  their  courts. 


HISTORICAL   COMMENTART.  263 

^'  yon  would  have  seen  in  a  strong  light  how  little  probable 
''it  is  a  judge  would  ever  give  such  a  judgment,  where  he 
"thought  he  could  possibly  avoid  it.  But  whatever  may 
''be  the  consequences,  formed  as  our  Constitution  is,  I  can- 
"  not  help  thinking  they  are  not  at  liberty  to  choose,  but 
"must  in  all  questionable  instances  decide  upon  it.  It  is  a 
"  subject  indeed  of  great  magnitude,  and  I  heartily  lament 
"  the  occasion  for  its  discussion.  In  all  doubtful  cases,  to 
"be  sure,  the  Act  ought  to  be  supported  :  it  should  be  un- 
' '  constitutional  beyond  dispute  before  it  is  pronounced  such. 
"I  conceive  the  remedy  by  a  new  election  to  be  of  very 
"little  consequence,  because  this  would  only  secure  the 
"views  of  a  majority  ;  whereas  every  citizen  in  my  opinion 
"should  have  a  surer  pledge  for  his  constitutional  rights 
"  than  the  wisdom  and  activity  of  any  occasional  majority 
"of  his  fellow-citizens,  who,  if  their  own  rights  are  in  fact 
"  unmolested,  may  care  very  little  for  his. — I  believe  many 
"think  as  you  do  upon  this  subject,  though  I  have  not 
"heard  much  said  about  it,  and  I  only  speak  on  the  general 
"question,  independent  of  an  application  to  any  case 
"whatever.  Most  of  the  lawyers,  I  believe,  are  of  my 
"  opinion  in  regard  to  that.  The  power  of  the  judges,  take 
"it  altogether,  is  indeed  alarming,  as  there  is  no  appeal 
"from  their  jurisdiction,  and  I  don't  think  any  country 
"can  be  safe  without  some  Court  of  Appeal  that  has  no 
"original  jurisdiction  at  all,  since  men  are  commonly  care- 
"ful  enough  to  cori-ect  the  errors  of  others,  though  seldom 
"  sufficiently  watchful  of  their  own,  especially  if  they  have 
"no  check  upon  them. 

"Jas.  Iredell." 


No.  5. 

Further  consideration  of  the  decision  of  Bayard  v.  Sin- 
gleton. 

The  foregoing  decision  is  of  the  greatest  constitutional  mo- 
ment not  only  from  its  inherent  value,  but  also  from  its  con- 
nection with  both  previous  and  with  subsequent  history. 
Its  several  points  must  therefore  be  restated  with  some  of 


264  HISTORICAL   COMMENTAHY. 

their  relations  to  other  points  of  law  discussed  elsewhere  in 
this  Essay. 

I.  In  the  first  place  it  must  be  precisely  understood  that 
the  law  of  the  land,  that  is  so  all  important  in  the  decision^ 
was  the  law  of  the  land  of  North  Carolina,  just  as  in  Tre- 
vett  v.  Weeden  it  was  the  law  of  the  land  of  E-hode  Island 
that  was  all  important.  This  is  clear  from  the  language  of 
the  court  in  speaking  of  the  constitution  of  the  state  ''as 
"the  fundamental  law  of  the  land"  and  also  in  speaking 
of  "a fair  decision  of  the  property  in  question  by  a  jury, 
"according  to  the  common  law  of  the  land."  The  confed- 
eration is  called  by  the  court  "a  part  of  the  law  of  the 
"  land,"  that  is  to  say  the  confederation  of  the  United  States 
was  a  part  of  the  law  of  the  land  of  North  Carolina,  which 
was  one  of  the  United  States. 

II.  In  the  next  place  it  will  be  observed  that  the  court 
was  of  opinion  that  by  the  constitution  of  North  Carolina 
every  citizen  of  the  state  liad  undoubtedly  a  right  to  the 
trial  by  jury,  and  that  the  legislature  of  the  state  could  not 
take  away  this  right  by  any  act  they  might  pass. 

This  position  coincides  perfectly  with  that  taken  by  Var- 
num  in  Trevett  n.  Weeden  and  approved  by  the  court  in 
that  case.  The  sole  difference  between  Trevett  i^.  Weeden 
and  Bayard  v.  Singleton  is  that  the  former  case  arose  under 
an  unwritten  constitution,  and  the  latter  under  a  written 
one.  In  both  cases  the  trial  by  jury  was  regarded  as  the  sole 
trial  according  to  the  law  of  the  land.  In  North  Carolina 
the  court  recommended  the  parties  to  consent  to  a  decision 
of  the  x)roperty  "by  a  jury  according  to  the  common  law  of 
the  land."  In  Rhode  Island  Judge  Tillinghast  held  that  a 
trial  Avithout  a  jury  was  not  a  trial  according  to  the  laws  of 
the  land.''^ 

III.  In  the  third  place,  the  court  was  of  opinion  that  the 
constitution  of  North  Carolina  stood  "  in  full  force"  as  the 
fundamental  law  of  the  land  of  North  Carolina  and  that 
the  legislature  of  the  state  could  not  repeal  or  alter  the  said 
constitution. 

*  See  page  246,  ante. 


HISTORICAL   COMMENTARY.  265 

lY.  The  reasoD  in  the  opinion  of  the  court,  why  the  leg- 
islature of  the  state  could  not  pass  any  act  repealing  or 
altering  the  constitution  of  the  state,  was  this  :  If  the  leg- 
islature could  pass  such  an  act,  they  would,  eo  instante^ 
destroy  their  own  existence  as  a  legislature,  and  dissolve 
the  government  established  by  the  constitution. 

The  position  is  so  identical  with  that  taken  by  Varnum 
in  Trevett  v.  Weeden,  that  it  must  be  assumed  to  have  been 
taken  from  his  argument.  That  Varnum' s  position  on  this 
head  was  approved  by  his  court  can  not  be  doubted.  Thus 
the  Superior  Courts  of  North  Carolina  and  Rhode  Island 
agreed  on  this  head  within  a  year  of  each  other. 

Y.  The  court  distinctly  was  of  opinion  that  the  judicial 
power  was  bound  to  take  as  much  notice  of  the  constitution 
of  the  state  as  any  other  law  whatever.  This  is  precisely 
the  doctrine  which  Marshall  elaborates  in  Marbury  v.  Mad- 
ison at  great  length. 

lY.  The  court  decided  that  the  act  of  the  general  assem- 
bly was  made  in  alteration  of  the  constitution,  that  it  was 
the  ground  upon  which  the  motion  before  the  court  was 
made,  and  that  it  must  ^'in  that  instance,  stand  as  abro- 
'' gated  and  without  any  effect." 

The  action  of  the  Superior  Courts  of  North  Carolina  and 
Rhode  Island  were  in  singular  agreement  under  different 
kinds  of  constitutions.  Both  refused  a  trial  without  a 
jury. 

YII.  The  court  decided  that  the  confederation  was  part 
of  the  law  of  the  kind  of  North  Carolina  and  could  not  be 
repealed  by  any  act  of  the  general  assembly  of  North  Caro- 
lina. As  will  be  shown  hereafter  the  constitution  of  the 
United  States  is  part  of  the  law  of  the  land  of  North  Caro- 
lina. The  relation  between  these  two  propositions  is  of 
great  importance. 

YIII.  The  court  decided  that  the  plaintiff's  ' '  being  citizens 
*'  of  one  of  the  United  Spates,  are  citizens  of  this  state,  by  the 
^'  confederation  of  all  the  states,"  and  so  had  the  same  right 
to  a  trial  by  jury  in  North  Carolina  as  the  citizens  of  that 
state. 

Thus  a  trial  by  the  law  of  the  land  of  North  Carolina  was 


26Q  HISTORICAL   COMMENTARY. 

in  that  state  the  right  of  the  citizens  of  every  other  state, 
because  the  confederation  was  to  be  taken  as  part  of  the 
law  of  the  land  of  North  Carolina. 


No.  6. 

Of  the  date  when  the  decision  in  Bayard  v.  Singleton 
became  known  to  the  Framers'  contention. 

It  is,  perhaps,  an  open  question  whether  the  constitu- 
tional decision  in  Bayard  v.  Singleton  was  known  in  Phila- 
delphia on  June  6,  1786.  If  it  was  not  then  known,  the 
case  can  not  be  one  of  those  alluded  to  by  Gerry  in  his 
speech  above  mentioned.  ^ 

The  decision  could  not  have  been  rendered  earlier  than 
Monday,  May  21st,  or  later  than  Thursday,  May  81st. 
These  dates  are  based  on  the  then  existing  legislation  concern- 
ing the  May  Term  of  the  Superior  Court,  which  was  held  at 
Newbern  and  comprised  the  last  ten  working  days  of  the 
month  of  May.  See  Iredell's  Laws  of  North  Carolina,  Eden- 
ton,  1791,  page  528. 

With  southerly  winds  and  other  favorable  circumstances, 
communication  by  water  between  Newbern  and  Philadel- 
phia may  have  been  made  in  seven  or  eight  days.  Com- 
munication by  land  must  have  taken  a  good  deal  more  time. 
On  August  12th,  1787,  Spaight  in  Philadelphia  wrote  his 
letter  to  Iredell  in  North  Carolina.  Iredell' s  answer  is  dated 
fourteen  days  later,  on  August  26th.  See  Iredell's  Life, 
vol.  2,  pages  168,  172. 

There  are  two  arguments  in  favour  of  no  time  being  lost 
in  sending  the  news  of  the  decision  to  Philadelphia.  Davie, 
who  was  Iredell's  colleague  as  counsel  for  the  plaintiffs, 
was  attending  the  Framer's  convention  as  a  member  from 
North  Carolina.  Spaight  was  another  member  from  that 
state,  who  had  the  keenest  interest  in  the  case  and  who  be- 
came a  leading  opponent  of  the  decision. 

If  the  decision  was  not  known  in  Philadelphia  on  June 

*  See  page  219,  ante. 


niSTOPJCAL    COMME:N-TAnY.  267 

6tli,  it  must  have  become  so  soon  after,  that  is  to  say,  a 
good  while  before  the  critical  date  of  July  17th.  On  that 
day  the  convention  adopted  Tiem.  con.  Martin's  resolution 
which  provided  a  judicial  method  of  settling  conflicts  be- 
tween the  laws  of  the  Union  and  those  of  the  states.  See  5 
Elliot's  Debates,  page  322. 


CHAPTER  XXyil. 


Furttier  considerations  connected  ^witli  tlie  foreg^oins: 
cases  and  especially  tliat  of  Ruts^ers  v*  YITaddins:- 
ton. 


Bayard  v.  Singleton  and  Rutgers  n.  Waddington  are  thus 
in  direct  contradiction  as  to  the  nature  of  written  constitu- 
tions. The  New  York  court  decided  in  express  terms  that 
Blackstone's  tenth  rule  for  construing  statutes  applied  in 
New  York  although  the  constitution  was  a  written  one. 
On  the  other  hand,  the  North  Carolinian  court,  because  the 
constitution  was  written,  gave  a  decision  which  made  Black- 
stone' s  rule  illegal  and  inapplicable  in  that  state.  Every 
statute  conflicting  with  the  constitution  must  be  judicially 
held  void  in  North  Carolina,  while  legal  right  in  New  York 
was  just  the  contrary.  The  two  cases  under  written  con- 
stitutions are  in  conflict.  The  case  of  Trevett  v.  Weeden 
can  not  turn  the  balance  between  them,  because  it  arose 
under  an  unwritten  constitution. 

In  1787  conflicts  between  state  laws  and  federal  treaties 
were  a  source  of  the  greatest  difficulty  to  the  federal  Con- 
gress. At  the  same  date  future  conflicts  between  state  laws 
or  constitutions  and  the  new  constitution  laws  or  treaties  of 
the  United  States  were  the  subject  of  the  deepest  thought 


268  HISTORICAL   COMMENTARY. 

to  the  Framers'  convention.  At  the  first  sight,  therefore, 
Rutgers  v.  Waddington  must  have  seemed  a  great  discour- 
agement to  all  members  of  both  bodies  who  desired  that 
state  judges  should  be  bound  to  hold  state  legislation  to  be 
void  in  so  far  as  contrary  to  federal  law  under  the  old  con- 
federation or  the  new  constitution.  Further  examination, 
however,  must  have  shown  anxious  inquirers  in  1787  that 
the  decision  in  Rutgers  d.  Waddington  suggested  an  excel- 
lent and  a  technical  means  of  escape  from  such  difiiculties. 
The  New  York  court  had  refused  to  presume  that  the  leg- 
islature had  intended  to  derogate  to  the  law  of  nations  and 
had  decided  that  the  statute  did  not  derogate  thereto.  In 
doing  this,  it  laid  the  greatest  stress  on  the  fact  that  the 
statute  did  not  contain  any  nonohstante  clause  derogating 
to  the  law  of  nations.  Had  it  done  so,  the  whole  case  would, 
the  court  thought,  have  been  an  altogether  different  one. 
The  will  of  the  legislature  would  then  have  clearly  bound 
the  court  to  make  a  contrary  decision.  The  court  \Vould 
have  been  compelled  to  interpret  the  treaty  according  to 
the  will  of  the  legislature  and  contrary  to  the  law  of  na- 
tions. 

The  observations  of  the  New  York  court  upon  the  legal 
institution  of  the  nonohstante  clause,  have  been  previously 
quoted.  They  show  clearly  that  the  repeal  of  things  con- 
trary, which  is  made  by  a  nonohstante  clause,  is  an  express 
one,  and  that  no  court  can  use  construction  or  interpreta- 
tion to  disregard  it.  It  was  the  absence  of  an  express  re- 
peal by  such  a  nonohstante  clause  or  otherwise,  which  en- 
abled the  court  to  say  that  no  repeal  existed,  because  it  had 
no  right  to  imply  one. 

The  observations  of  the  court  upon  the  nonohstante  clause 
contain  nothing  new  as  general  principles  of  law  and  are 
expressly  stated  to  be  based  upon  authority.  The  applica- 
tion of  the  doctrine  to  the  new  state  of  things  before  the 
court  is  another  matter  and  one  furnishing  much  new  food 
for  thought. 

The  absence  of  a  derogation  made  by  a  nonohstante  clause 
enabled  the  court  to  interpret  the  statute  to  be  in  harmony 
with  the  law  of  nations  and  the  treaty.     The  presence  of 


HISTORICAL   COMMENTARY.  269 

such  a  clanse  would  have  compelled  the  court  to  interpret 
the  statute  to  be  in  contrariety  with  the  law  of  nations  and 
the  treaty.  Thus  in  every  case  of  conflict  between  laws  of 
difterent  kinds,  a  nonobstante  clause,  enacted  by  compe- 
tent lawgivers,  must  govern  judicial  action,  whether  such 
exercise  of  legislative  power  be  good  or  be  evil.  Had  the 
state  legislature  used  the  nonobstante  clause  against  the 
treaty,  it  would  have  been  an  evil  use  thereof.  But  why 
should  not  such  a  clause  be  well  used  in  such  a  case,  that 
is  to  say,  used  in  favour  of  federal  right  when  state  statutes 
were  federally  wrongful  %  This,  it  is  suggested,  was  a  natu- 
ral question  to  anxious  inquirers  in  1787,  who  were  seeking 
solution  for  the  problem  of  conflicts  between  federal  and 
state  laws.  Certain  it  is  that  both  the  federal  Congress  and 
the  constitutional  convention  actually  proposed  the  use  of  ^ 
nonobstante  clauses  for  such  purposes,  as  will  be  herein- 
after pp^rticularly  rehearsed.  As  the  Congress  was  the  first 
so  to  do,  it  is  evident  that  it  set  the  example  to  the  conven- 
tion. But  who  suggested  the  idea  to  Congress,  that  is  to 
say,  the  idea  of  a  new  American  application  of  an  old  Eng- 
lish and  European  institution?  In  the  writer's  opinion, 
Rutgers  t.  Waddington  is  a  very  probable  and  the  most 
probable  source  from  which  such  a  suggestion  could  have 
been  taken.  If  this  be  so,  the  opinion  in  that  case  is  an 
imjjortant  historical  monument  in  the  constitutional  law  of 
the  Union.  It  clearly  defined  the  extreme  of  possible  mis- 
chief in  conflicts  between  the  laws  of  the  Union  and  those 
of  the  states  and  it  led  the  way  to  the  discovery  of  that 
remedy  which  the  Framers,  following  the  Congress,  thought 
the  best  solution  of  the  difficulty. 


270  HISTORICAL   COMMENTAKY. 


CHAPTER  XXYIII. 
Conclusions  of  tlie  Historical  Commentary. 


The  following  propositions  are  contendea  to  be  correct 
statements  of  results  ascertained  and  supported  by  the  fore- 
going Historical  Commentary  on  foreign  and  American 
laws. 

I.  It  accords  with  the  principles  of  law  and  with  legal 
reasoning  that  a  constitution  should  be  of  such  a  nature, 
that  the  judiciary  thereunder  should  be  incompetent  to  de- 
cide a  questioned  law  to  be  unconstitutional  or  impeachable 
and  hold  it  therefore  void.  This  can  be  so  when  the  consti- 
tution is  either  unwritten  or  written.  Such  an  unwritten 
constitution  was  that  of  Great  Britain  in  1776  and  long  be- 
fore. Such  written  constitutions  are  those  now  existing  in 
nearly  every  German  state.  The  various  written  constitu- 
tions which  have  existed  in  France,  since  the  revolution  of 
1789,  also  afford  examples  of  the  truth  of  this  proposition. 
So  too  did  the  written  constitution  of  New  York  existing  in 
1784,  if  the  opinion  of  Rutgers  ^.  Waddington,  dated  in 
that  year,  was  correct.  Rutgers  v.  Waddington  is  older 
than  the  U.  S.  constitution,  but  the  other  cases  referred  to 
under  written  constitutions  are  junior  thereto. 

II.  Nevertheless,  it  equally  accords  with  the  principles  of 
law  and  with  legal  reasoning  that  a  written  or  unwritten 
constitution  should  be  of  such  a  nature  that  the  judiciary 
thereunder  should  be  competent  to  decide  a  questioned  law 
to  be  contrary  to   the  constitution  or  to  binding  right  of 


HISTORICAL   COMMENTARY.  271 

superior  strength  to  the  legislative  power  exercised,  and, 
when  it  had  so  decided,  to  hold  the  same  to  be  therefore 
void.  Such  can  be  the  law  when  the  constitution  is  either 
written  or  unwritten.  Before  the  U.  S.  constitution  was 
framed  there  were  unwritten  and  written  constitutions  under 
which  it  might  be  a  judicial  and  not  an  extrajudicial  ques- 
tion whether  challenged  legislation  was  accordant  or  con- 
trariant  to  constitutional  or  other  binding  right,  and  whether 
legislators  had  or  had  not  proceeded  secundum  jus  potes- 
tails  suae  in  enacting  it.  For  unwritten  European  consti- 
tutions, this  is  shown  by  the  cases  adduced  from  the  older 
French  law,  the  older  English  law,  the  English  law  of  the 
prerogative  abroad,  the  Roman  law  of  rescripts,  and  above 
all  the  Canon  law.  For  an  American  unwritten  constitu- 
tion this  is  shown  by  the  great  case  of  Trevett  v.  Weeden 
in  Rhode  Island  in  1786.  For  a  written  constitution  the 
truth  of  the  proposition  is  shown  by  the  case  of  Bayard  «. 
Singleton,  in  North  Carolina  in  1787,  in  which  one  of  the 
counsel  for  the  party  challenging  the  law,  was  a  Framer  of 
the  constitution.  All  the  said  cases  are  older  than  the  con- 
stitution of  the  United  States. 

On  the  whole  matter,  therefore,  the  Framers  of  the  con- 
stitution were  at  liberty  to  do  what  they  deemed  wisest  and 
best  in  regard  to  the  judicial  competency  in  question,  with- 
out danger  of  violating  the  principles  of  law  or  those  of 
either  civil  or  politic  prudence.  The  judiciaries  established 
or  affected  by  the  new  constitution  might  be  either  enabled 
to  exercise,  or  disabled  from  exercising,  such  a  competency, 
without  danger  of  a  leap  in  the  dark.  Either  course  might 
be  taken  without  being  unprecedented. 

The  question,  whether  this  judicial  competency  was  ever 
heard  of  before  it  was  established  in  America,  has  now  been 
answered. 

The  next  part  of  this  Essay  will  discuss  the  question 
whether  the  Framers  intended  that  the  said  judicial  com- 
petency should  belong  to  the  federal  judiciary  established 
by  the  new  constitution,  or  to  the  state  judiciaries  affected 
by  it. 


272  HISTORICAL  COMMENTARY, 


PAET  III. 

Of  the  historical  antecedents  of  the  constitutional 
texts  concerned. 

Part  III.  of  the  Historical  Commentary  will  investigate 
the  origin  of  the  texts  of  the  constitution,  that  are  con- 
cerned and  will  discuss  their  historical  relation  to  antece- 
dent texts  which  existed  under  the  confederation. 


CHAPTER  XXIX. 

Of  tlie  liistorical  antecedents  of  parasfrapli  2.  VI.  of 
tlie  constitution. 

No.  1.  OfthetextofparagrapJi^.  Yl. 

No.  2.  Of  the  treaty  of  peace  with  Great  Britain. 

No  3.  Of  certain  acts  of  the  federal  Congress  concern- 
ing the  treaty  of  peace  and  their  historical  relation  to 
paragraph  2.  VL 

No.  4.  Of  the  relation  of  the  judiciaries  of  the  states  to 
the  treaty  of  peace^  according  to  the  federal  letter  of  Con- 
gress dated  April  13th,  1787, 

No.  5.  Of  the  resolutions  of  the  federal  Congress  passed 
March  21st,  1787,  and  recited  in  the  federal  letter  of 
April  13th. 

No.  6.  Of  the  scope  of  legislation  concerning  the  treaty 
of  peace  then  recommended  to  the  states  hy  Congress. 

No.  7.  Of  state  statutes  posterior  to  the  confederation 
and  conflicting  with  federal  treaties. 


HISTORICAL   COMMENTARY.  273 

No.  8.  Rehearsal  of  the  federal  law  concerning  conjiicts 
between  U  S.  treaties  and  state  statutes,  as  laid  down  in 
the  letter  of  Congress. 

No.  9.  Of  the  origin  of  the  doctrine  that  a.  treaty  may 
he  part  of  the  law  of  the  land  of  a  state. 

No.  10.  Of  the  origin  of  the  doctrine  that  the  legislature 
can  not  repeal  some  parts  of  the  law  of  the  land  of  a  state. 

No.  11.  Of  the  meaning  of  the  words,  'Hhe  law  of  the 
"  land,^^  in  the  first  resolution  of  Congress  and  in  its  fed- 
eral letter. 

No.  12.  Of  the  origin  of  the  pursuance  clause  of  para- 
graph 2.  VI. 


The  texts  of  the  constitution,  with  which  this  Essay  is 
particularly  concerned,  are  paragraph  2.  YI.  and  the  begin- 
ning of  section  2.  III.  The  first  contains,  among  other 
things,  a  special  address  to  the  judges  of  the  state  courts. 
The  last  is  part  of  an  article,  which  specially  concerns  the 
courts  of  the  United  States. 

This  chapter  will  investigate  the  origin  of  the  text  of  para- 
graph 2.  YI.  and  examine  its  historical  relation  to  antece- 
dent texts  under  the  confederation. 

No.  1. 
Of  the  text  of  paragraph  '2.  VL 

Paragraph  2.  YI.*  reads  thus  : 

*'This  constitution,  and  the  laws  of  the  United  States 
*'  which  shall  be  made  in  pursuance  thereof  ;  and  all  treaties 
"  made,  or  which  shall  be  made,  under  the  authority  of  the 
*^  United  States,  shall  be  the  supreme  law  of  the  land  ;  and 
*'  the  judges  in  every  state  shall  be  bound  thereby,  any  thing 
"  in  the  constitution  or  laws  of  any  state  to  the  contrary 
"  notwithstanding." 
18  C 


274  HISTORICAL   COMMENTARY. 

The  contents  of  the  first  two  clauses  of  this  paragraph 
include : 

1st,  the  constitution  ; 

2cl,  the  laws  aforesaid  ; 

3d,  the  treaties  aforesaid. 

Of  the  first  two  clauses,  that  of  treaties  contains  the  only 
things  capable  of  existing  previously  to  the  establishment 
of  the  constitution. 


No.  2. 
Of  the  treaty  of  peace  with  Great  Britain 

When  the  Framers  met  in  convention  the  violation  of  the 
treaty  of  peace  by  certain  of  the  states  was  one  of  the  most 
pressing  anxieties  of  the  political  situation  of  the  Union. 
It  was  also  an  anxiety  most  fruitful  of  results  in  develop- 
ing the  frame  of  the  constitution.  The  treaty  of  peace  was 
intimately  connected  with  the  origin  and  form  of  paragraph 
2.  YI. 


Of  certain  acts  of  the  federal  Congress  concerning  the 
treaty  of  peace  and  their  historical  relation  to  paragraph 
2.  Vl. 

Paragraph  2.  YI.  is  in  part  modelled  and  in  part  developed 
from  acts  of  the  federal  Congress  relating  to  the  treaty  of 
peace  with  Great  Britain.  Those  acts  were  passed  in  the 
March  and  April  before  the  meeting  of  the  Convention  on 
May  14th,  1787.  On  the  previous  April  13th,  the  United 
States  in  Congress  assembled  unanimously  recommended 
the  several  states  to  enact  identical  laws  of  the  following 
frame  :  ' '  Whereas  certain  laws  or  statutes  made  and  passed 
"in  some  of  the  United  States,  are  regarded  and  complained 
"of  as  repugnant  to  the  treaty  of  peace  with  Great  Britain, 
"by  reason  whereof  not  only  the  good  faith  of  the  United 
"  States  pledged  by  that  treaty,  has  been  drawn  into  ques- 


HISTORICAL   COMMENTARY.  275 

'^  tion,  but  their  essential  interests  under  that  treaty  greatly 
"  affected.  And  whereas  Justice  to  Great  Britain,  as  well  as 
"  regard  to  the  honour  and  interests  of  the  United  States, 
"require  that  the  said  treaty  be  faithfully  executed,  and 
*'that  all  obstacles  thereto,  and  particularly  such  as  do  or 
"  may  be  construed  to  proceed  from  the  laws  of  this  state, 
"  be  effectually  removed. 

^ '  Therefore, 

"  Be  it  enacted  by   .    . 

*^  and  it  is  hereby  enacted  by  the  authority  of  the  same, 
''  that  such  of  the  acts  or  part  of  acts  of  the  legislature  of 
"this  state,  as  are  repugnant  to  the  treaty  of  peace  between 
"the  United  States  and  his  Britannic  Majesty,  or  any  arti- 
^ '  cle  thereof,  shall  be,  and  hereby  are  repealed.  And  further, 
"that  ^7^6  courts  of  law  and  equity  y^SXkAxs.  this  state  be, 
"  and  they  hereby  are  directed  and  required  in  all  causes 
"  and  questions  cognizable  by  them  respectively,  and  aris- 
"ing  from  or  touching  the  said  treaty,  to  decide  and  ad- 
''^ judge  according  to  the  tenor,  true  intent  and  meaning  of 
"the  same,  any  thing  in  the  said  acts^  or  parts  of  acts^ 
"  to  the  contrary  thereof  in  anywise  notwithstanding.^'  * 

A  federal  letter  of  Congress  to  the  several  states  upon  the 
subject  of  the  treaty  transmits  and  urges  the  above  recom- 
mendations with  elaborate  arguments  of  the  highest  interest. 


No.  4. 

Of  the  relation  of  the  judiciaries  of  the  states  to  the 
treaty  of  peace  according  to  the  federal  letter  of  Congress. 

Among  the  arguments  urged  by  Congress  is  the  following 
remarkable  doctrine  concerning  the  proper  relation  of  the 
state  judiciaries  to  the  treaty.  It  is  contained  in  the  latter 
part  of  the  following  extract  from  the  federal  letter  : 

"Such  a  general  law  would,  we  think,  be  preferable  to 
"one  that  should  minutely  enumerate  the  acts  and  clauses 
"  intended  to  be  repealed  :  because  omissions  might  acci- 
"  dentally  be  made  in  the  enumeration,  or  questions  might 

*  Journals  of  Congress,  ed.  1801,  vol.  12,  p.  35,  April  13th,  1787. 


276  HISTORICAL   COMMENTAKY. 

"  arise,  and  perhaps  not  be  satisfactorily  determined,  re- 
"specting  particular  acts  or  clauses,  about  which  contrary 
' '  opinions  may  be  entertained.  By  repealing  in  general 
' '  terms  all  acts  and  clauses  repugnant  to  the  treaty,  the 
''  business  will  be  turned  over  to  its  proper  department, 
''viz.,  the  judicial ;  and  the  courts  of  law  will  find  no 
"difficulty  in  deciding  whether  any  particular  act  or 
"  clause  is  or  is  not  contrary  to  the  treaty.^^'^ 

This  express  declaration  of  the  proper  functions  of  the 
Judicial  department  of  government  concerning  treaties,  it  is 
here  maintained,  is  the  germ  from  which  the  Framers  of  the 
constitution  developed  its  provisions  concerning  the  judi- 
ciaries of  the  states,  as  found  in  paragraph  2.  VI.  By  the 
prescriptions  of  that  paragraph  the  judges  in  each  state  are 
bound  to  use  their  judicial  power,  according  to  the  rule  and 
limitation  therein  prescribed,  whenever  their  duty  requires 
them  to  pass  upon  either  constitutional  or  treaty  questions 
involving  the  validity  of  legislation  of  any  kind. 

No.  5. 

Of  the  resolutions  of  the  federal  Congress  passed  March 
^Ist,  1787,  and  recited  in  the  federal  letter  of  April  ISth^ 

1787, 

The  federal  letter  of  Congress  to  the  states  and  the  draft 
of  identical  laws  for  their  legislatures  enclosed  therein  were 
written  in  pursuance  of  three  resolutions,  which  had  been 
passed  on  March  21st,  1787,  as  unanimous  acts  of  that  body. 
The  text  of  the  third  resolution  was,  mutatis  mutandis,  of 
the  same  frame  with  that  of  the  body  of  the  draft  of  iden- 
tical laws  above  quoted.  All  these  resolutions  were  part 
and  parcel  of  the  action  of  Congress  in  the  matter  and  were 
recited  and  commented  upon  in  their  federal  letter.  The 
first  of  them  reads  : 

"  Resolved,  That  the  legislatures  of  the  several  states 
'^cannot  of  right  pass  any  act  or  acts,  for  interpreting,  ex- 
'' plaining,  or  construing  a  national  treaty  or  any  part  or 

*  Same  volume,  p.  36. 


HISTOEICAL   COMMENTAKY.  277 

'*  clause  of  it ;  nor  for  restraining,  limiting  or  in  any  manner 
' '  impeding,  retarding  or  counteracting  the  operation  and  exe- 
' '  cution  of  the  same,  for  that  on  being  constitutionally  made^ 
'•'ratified  and  published^  they  become  in  virtue  of  the  con- 
'' federation,  part  of  the  law  of  land,  and  are  not  only  in- 
"  dependent  of  the  will  and  power  of  such  legislatures,  but 
''also  binding  and  obligatory  upon  them,"* 


JSTo.  6. 

Of  the  scope  of  the  legislation  concerning  the  treaty  of 
peace  recommended  to  the  states  by  the  federal  Congress. 

The  federal  letter  of  Congress  moves  each  and  all  the 
states  to  enact  the  proposed  law,  in  order  to  avoid  naming 
the  names  of  states  violating  the  treaty. 

It  is  to  be  observed  that  the  state  legislation  proposed  by 
the  federal  letter  of  April  13th  and  the  third  federal  resolu- 
tion of  March  21st,  1787,  contained  far  reaching  legislative 
remedies  against  state  statutes  violating  the  treaty  of  peace 
and  so  also  the  federal  right  of  the  Union.  In  spite  of  the 
great  scope  of  these  provisions,  the  proposed  legislation  by 
no  means  covered  the  whole  difficulty  of  conflicts  between 
federal  treaties  and  state  laws.  It  did  not  settle  the  ques- 
tion whether  or  not  a  state  could  in  strict  rigour  of  law 
enact  statutes  contrariant  to  treaties,  which,  nevertheless, 
had  legal  vigour  within  the  territorial  limits  of  the  state. 
It  also  made  no  provision  for  the  cases  of  future  state  laws 
being  enacted,  which  intentionally  conflicted  with  the  treaty 
of  peace.  Such  cases  were  intimately  connected  with  the 
question  whether  existing  contrariant  state  laws  made  pos- 
terior to  the  treaty  were  on  the  same  footing  with  like  laws 
made  prior  thereto. 


*  Journals  of  Congress,  volume  cited,  page  24,  March  21st,  1787. 


278  HISTOEICAL   COMMENTARY. 


No.  7. 


Of  state  statutes  posterior  to  tlie  confederation  and  con- 
flicting with  the  federal  treaties. 

One  of  the  urgent  problems  requiring  solution  by  the 
Framers  of  the  constitution  was  that  of  preventing  poste- 
rior as  well  as  prior  state  laws  from  impeding  the  execution 
of  federal  treaties.  Under  the  confederation,  the  question 
of  such  posterior  laws  had  been  felt  to  be  a  very  difficult 
and  a  very  delicate  one.  In  the  debate  upon  it,  on  March 
21st,  1787,  in  the  federal  Congress,  Madison  said  : 

''A  distinction  too  might  be  started  possibly  between 
^'  laws  prior  and  laws  subsequent  to  the  treaty ;  a  repealing 
"effect  of  the  treaty  on  the  former  not  necessarily  imply- 
"ing  the  nullity  of  the  latter.  Supposing  the  treaty  to 
"  have  the  validity  of  a  law  only,  it  would  repeal  all  ante- 
'' cedent  laws.  To  render  succeeding  laws  void,  it  must 
''have  more  than  the  mere  authority  of  a  law.  In  case 
"these  succeeding  laws,  contrary  to  the  treaty,  should 
"  come  into  discussion,  before  the  courts  [/.  e.  of  the  states], 
"it  would  be  necessary  to  examine  the  foundation  of  the 
"federal  authority,  and  to  determine  whether  it  had  the 
"validity  of  a  constitution  paramount  to  the  legislative 
"authority  in  each  state.  This  was  a  delicate  question, 
"and  studiously  to  be  avoided,  as  it  was  notorious  that, 
"although  in  some  of  the  states  the  confederation  was  in- 
"  corporated  with,  and  had  the  sanction  of,  their  respective 
"constitutions,  yet  in  others  it  received  a  legislative  ratifi- 
"  cation  only,  and  rested  on  no  other  basis.  "'^ 

These  remarks  should  be  compared  with  the  solution  of 
the  treaties-problem  made  by  paragraph  2.  YI.  of  the  con- 
stitution. That  solution  was  effected  upon  a  system  of  con- 
stitutional law,  one  of  the  principles  of  which  was  that 
the  derogation  imported  by  the  nonohstante  clause  of 
paragraph  2.  YI.  applies  to  future  as  well  as  past  state  laws 
contrariant  to  treaties,  regardless  of  the  maxim  lex  poste- 

*  Elliott,  v.  99. 


HISTORICAL   COMMENTARY.  279 

rioT  derogat  legi  priori.  This  will  be  fully  commented 
upon  when  the  whole  text  is  considered.  It  is  here,  how- 
ever, requisite  to  point  out  clearly  that  the  origin  of  the 
notwithstanding  or  nonobstante  clause  of  paragraph  2.  YI. 
is  to  be  traced  directly  to  the  said  draft  of  identical  laws  of 
April  13th  and  third  resolution  of  March  21,  1787.  There, 
and  there  only,  is  to  be  found  the  original  source  of  the 
idea  of  applying  that  ancient  piece  of  legislative  machinery 
to  state  laws  contrariant  to  federal  treaties.  The  constitu- 
tion, it  is  true,  makes  a  more  comprehensive  use  of  the 
nonobstante  clause  than  the  said  draft  of  identical  laws.  It 
applies  the  clause  not  merely  to  past  state  laws  and  consti- 
tutions contrariant  to  past  treaties,  but  to  all  state  laws  and 
constitutions  contrariant  to  the  constitution  and  the  consti- 
tutional laws  and  treaties  of  the  United  States,  regardless 
of  priority  or  posteriority  in  date.  Nevertheless  the  origi- 
nal idea  of  applying  the  nonobstante  clause  to  the  laws  of 
a  state,  because  conflicting  with  a  written  act  of  the  United 
States,  is  derived  from  the  draft  of  identical  laws  and  reso- 
lution aforesaid. 


No.  8. 

Rehearsal  of  the  federal  lam  concerning  conflicts  be- 
tween U.  S.  treaties  and  state  statutes  as  laid  down  in  the 
letter  of  Congress. 

According  to  the  letter  of  Congress,  the  three  resolutions 
therein  recited,  and  the  draft  of  identical  laws  therein  recom- 
mended, the  principles  of  law  asserted  by  federal  authority 
concerning  the  treaty  of  peace  appear  to  have  been  as  fol- 
lows : 

Great  Britain  had  claimed  that  infractions  of  the  treaty 
of  peace  existed  on  the  part  of  the  United  States  of  America. 
Too  little  attention,  in  the  opinion  of  Congress,  appearpd  to 
have  been  paid  to  the  treaty  in  some  of  the  states. 

The  confederation  had  committed  to  Congress  the  care  of 
all  rights  which  other  nations  ought  to  have,  as  against  the 
United  States,  according  to  the  law  of  nations  and  the  faith 


280  HISTORICAL   COMMENTARY. 

of  treaties.  The  treaty  of  peace  was  contracted  with  a 
pledge  of  the  public  faith  to  the  King  of  Great  Britain, 
which  Congress,  by  the  express  terms  of  the  confederation, 
could  engage  on  behalf  of  each  and  every  state. 

In  support  of  their  jurisdiction  in  these  respects,  Con- 
gress cited  as  authority  that  part  of  the  9th  article  of  the 
confederation,  which  related  to  matters  belonging  to  the 
law  of  nations.  This  was  the  first  paragraph  of  that  arti- 
cle, containing  delegation  from  the  states,  to  the  United 
States  in  Congress  assembled,  of  certain  exclusive  power 
and  right  upon  the  subjects  of  war,  peace,  alliance,  treaties ^ 
captures,  letters  of  marque  and  reprisal,  piracies,  felonies 
on  the  high  seas,  and  appeals  in  cases  of  captures. 

The  federal  letter  of  Congress  asserted  that  ' '  when  there- 
"fore  a  treaty  is  constitutionally  made,  ratified  and  pub- 
"lished  by  us,  it  immediately  becomes  binding  on  the  whole 
"nation,  and  superadded  to  the  laws  of  the  land,  without 
''  the  intervention  of  state  legislatures.'"^  The  first  resolu- 
tion of  Congress  asserted  the  following  proposition  of  ''a 
"national  treaty  or  any  part  or  clause  of  it,"  viz.^  that  "on 
"being  constitutionally  made,  ratified  and  i)ublished,  they 
"become  by  virtue  of  the  confederation  part  of  the  law  of 
"the  land."  While  these  positions  were  distinctly  af- 
firmed, no  authority  was  anywhere  mentioned  for  the  doc- 
trine that  a  treaty  was  in  any  land  a  part  of  the  law  of  the 
land.  The  authority,  which  can,  however,  be  adduced 
therefor,  will  be  quoted  upon  a  subsequent  page.  Neither 
was  any  authority  referred  to  for  the  proposition  that  the 
confederation  was  the  law  of  the  land  anywhere,  a  matter 
which  is  elsewhere  referred  to  in  this  Essay. 

Congress  pointedly  remarked  that  the  parties  to  the  treaty 
of  peace  were  the  king  of  Great  Britain  on  the  one  side, 
and  all  the  United  States  collectively  on  the  other.  The 
different  states  did  not  make  the  treaty  separately  but  col- 
lectively. On  this  head,  the  position  taken  was  identical 
with  that  tersely  expressed  by  C  C.  Pinckney  in  the  Janu- 
ary following,  when  he  said  in  the  assembly  of  South  Caro- 
lina that  "  we  do  not  enter  into  treaties  as  separate  states, 

*  Journals  of  Congress,  as  cited,  page  u3. 


HISTORICAL   COMMENTAKT.  281 

'^but  as  united  states.'"'^  Thus,  the  legislature  of  a  state 
could  not  make  a  federal  treaty.  Neither  could  it  prevent 
a  federal  treaty,  when  made,  from  becoming  part  of  the  law 
of  the  land.  The  legislature  of  a  state  could  not  therefore 
''of  right"  pass  any  law  either  repealing  a  treaty  or  con- 
flicting therewith,  or  interfering  with  the  operation  and  ex- 
ecution thereof,  or  prescribing  any  other  rule  for  the  inter- 
pretation thereof  than  the  law  of  nations.  A  statute  which 
the  legislature  of  a  state  could  constitutionally  enact,  it 
could  constitutionally  repeal ;  but  no  treaty  could  under 
the  confederation  be  altered  without  the  consent  of  the 
United  States  in  Congress  assembled  in  pursuance  thereof 
and  given  in  accordance  therewith.  Nor,  was  their  con- 
sent e\en  sufiicient  to  change  a  treaty.  No  treaty  could 
be  changed  without  the  consent  of  both  contracting  parties, 
one  of  whom  was  the  foreign  sovereign  contracted  with 
under  the  law  of  nations. 

No  authority  was  mentioned  by  Congress  for  the  doctrine 
or  view  that  in  any  land  there  may  be  a  part  of  the  law  of 
the  land  which  the  legislature  thereof  can  not  repeal.  An 
authority  therefor  is,  however,  referred  to  elsewhere  in  this 
Essay. 

While  the  legislature  of  a  state  could  neither  repeal,  con- 
strue, nor  otherwise  interfere  with  any  treaty,  the  judiciary 
of  a  state  was  asserted  to  have  a  different  relation  thereto. 
The  letter  observed:  ''In  cases  between  individuals,  all 
"doubts  respecting  the  meaning  of  a  treaty,  like  doubts 
"respecting  the  meaning  of  a  law,  are  in  the  first  instance 
"mere  judicial  questions,  and  are  to  be  heard  and  decided 
"in  the  courts  of  justice  having  cognizance  of  the  causes 
"in  which  they  arise,  and  whose  duty  it  is  to  determine 
"  them  according  to  the  rules  and  maxims  established  by 
"the  laws  of  nations  for  the  interpretation  of  treaties. "f 
Consequently  the  legislature  of  a  state  could  not  prescribe 
to  the  courts  or  citizens  of  the  state  any  rule  of  interpreta- 
tion different  from  the  law  of  nations.  A  contrary  doctrine 
would  not  only  be  irrational  in  theory  but  inconvenient  in 

*  4  Elliot's  Debates,  page  279. 

t  Journals  of  Congress,  as  cited,  page  33. 


283  HISTORICAL   COMMENTARY. 

practice,  for  according  to  it  the  same  article  of  the  same 
treaty  might  have  different  meanings  in  different  states. 

The  then  actual  state  of  things  was  such  in  the  opinion 
of  Congress  that  the  legislature  of  each  state  ought  to  enact 
a  repeal  of  all  acts  and  parts  of  acts  repugnant  to  the  treaty 
of  peace  in  the  form  of  the  draft  of  law.  According  thereto, 
the  treaty  would  be  declared  to  be  legally  and  explicitly 
binding  and  obligatory  upon  the  ' '  courts  of  law  and  equity" 
of  the  state  ''anything  in  the  said  acts  or  parts  of  acts  to 
"  the  contrary  thereof  in  any  wise  notwithstanding."* 

It  will  be  observed  that  the  words  "of  right,"  make  an 
avoidance  of  the  question  of  strict  rigour  of  law  previously, 
mentioned.  This  avoidance  also  appears  in  the  federal 
letter  of  Congress  in  a  peculiar  shape.  How  far  a  state  law 
repugnant  to  a  treaty  would  be  valid  and  obligatory  within 
the  mere  limits  of  the  enacting  state,  was  a  question  which 
the  federal  Congress  hoped  that  it  would  never  be  called 
upon  to  discuss.  It  was,  however,  expressly  added,  that 
no  matter  what  might  be  the  answer  to  the  question,  it  was 
certain  that  such  a  repugnant  law  would  not  bind  the  con- 
tracting parties  to  any  treaty.  In  the  case  of  the  treaty  of 
peace,  the  contracting  parties  were  the  King  of  Great  Brit- 
ain, on  the  one  side,  and  all  the  United  States  collectively 
on  the  other,  t 

It  seems  impossible  not  to  be  forcibly  struck  with  the 
great  resemblance  to  the  features  of  the  foregoing  resolu- 
tions of  Congress  and  the  recommended  draft  of  identical 
laws  which  is  presented  by  the  provisions  concerning  treaties 
in  paragraph  2.  YI.  of  the  constitution.  Those  provisions 
of  that  section  read  : 

"All  treaties  made,  or  which  shall  be  made  under  the 
"authority  of  the  United  States,  shall  be  the  supreme  law 
"  of  the  land  ;  and  the  judges  in  every  state  shall  be  bound 
"  thereby,  any  thing  in  the  constitutions  or  laws  of  any  state 
"to  the  contrary  notwithstanding." 

The  law  of  the  land,  the  binding  of  the  judges  in  every 

*  Same  volume,  page  36. 
t  Same  volume,  page  24. 


HISTORICAL   COMMENTARY.  283 

Btate  oy  treaties,  the  nonobstanie  or  notwithstanding  clause, 
are  thus  all  to  be  found  in  both  the  draft  of  identical  laws 
recommended  by  Congress  to  the  states  in  April,  1787,  and 
in  the  constitution  framed  during  the  following  summer  and 
submitted  to  the  same  states  in  following  September. 

Such  resemblances  and  repetitions  can  not  have  been  ac- 
cidental. There  were  too  many  members  of  the  convention 
who  were  members  of  Congress  at  the  dates  and  times  con- 
cerned, for  the  action  of  the  two  bodies  not  to  be  related. 
Madison  was  a  most  assiduous  member  of  both  assemblies, 
and  has  preserved  for  posterity  both  the  debates  of  the 
Congress  on  the  treaty  question  and  the  debates  of  the  Con- 
vention on  the  whole  constitution.  Gorham,  another  dele- 
gate in  that  Congress,  was  not  only  a  Framer,  but  also  a 
member  of  the  first  committee  of  five  which  reported  the 
original  draft  of  the  constitution.  All  of  the  members  of 
the  second  committee  of  five,  which  reported  the  revised 
draft,  except  G.  Morris,  represented  their  states  in  that 
Congress,  viz.^  Johnson  the  chairman,  Hamilton,  and  King, 
besides  Madison.  The  binding  of  state  judges  by  treaties, 
and  the  nonobstanie  clause  derogatory  to  state  acts,  were 
things  written  in  the  amended  draft  of  constitution  that 
was  referred  to  the  second  committee  of  five.  The  words 
''law  of  the  land"  were  not  found  therein,  but  were  in- 
serted by  that  committee  in  their  revised  draft.  Instead  of 
the  previously  existing  words,  ' '  shall  be  the  supreme  law 
"  of  the  several  states  and  of  their  citizens  and  inhabitants," 
they  substituted  what  is  now  the  present  text,  "shall  be 
" the  supreme  law  of  the  land."  As  four  members  of  the 
committee  had  been  members  of  the  Congress  which  had  so 
applied  the  words  "law  of  the  land  "  to  a  treaty,  it  is  easy 
to  answer  the  question,  where  did  the  idea  of  their  altera- 
tion come  from. 

The  federal  letter  of  April  13th  and  resolutions  of  March 
21st,  1787,  are  of  such  importance  in  the  history  of  the  con- 
stitutional text,  that  the  writer  feels  it  requisite  to  insort 
them  in  extenso  in  Appendix  No.  7  to  his  Essay. 

Critical  objections  to  the  exposition  of  federal  right  made 
by  the  letter  of  Congress  will  be  found  in  Judge  Iredell's 


284  HISTORICAL   COMMENTARY. 

dissenting  opinion  in  Ware  v.  Hylton,  page  276  and  end  of 
page  279  of  3  Dallas. 

See  G.  Dufour's  Droit  Administratif  Applique  (Paris, 
1868),  I.  5-9,  for  a  view  of  the  law  of  treaties,  which  is  of 
interest  in  the  present  connection. 


No.  9. 

0^  the  origin  of  the  doctrine  that  a  treaty  may  he  part 
of  the  law  of  the  land  of  a  state. 

Other  questions  equally  interesting  may  now  be  asked. 
Where  did  the  idea  come  from,  that  a  treaty  is  to  be  re- 
garded as  part  of  the  law  of  the  land  ?  Upon  what  authority 
was  this  declared  to  the  legislature  of  each  state  by  the 
federal  Congress  ? 

Before  answering  these  questions,  it  should  be  observed 
that  the  precise  words  of  the  draft  of  identical  laws  of 
April  18th  and  third  resolution  of  March  21st  are  ''part  of 
''the  law  of  the  land."  The  word  "part"  in  this  phrase 
is  the  clue. 

The  lawyers  and  statesmen  of  1787  were  assiduous  stu- 
dents of  Blackstone.  Those  of  Blackstone'  s  present  readers, 
who  have  collated  his  Commentaries  with  texts  of  the  con- 
stitution and  related  documents,  will  have  no  difficulty  in 
recognizing  the  passage  upon  which  the  draft  for  identical 
laws  was  modelled.  The  letter  of  Congress  distinctly  makes 
the  law  of  nations  and  the  faith  of  treaties  parts  of  one  sub- 
ject ;  and  Blackstone,  TV.  ch.  5,  p.  67,  thus  speaks  of  the 
position  of  the  law  of  nations  in  England  : 

' '  In  arbitrary  states  this  law  (/.  e.  the  law  of  nations), 
"whenever  it  contradicts  or  is  not  provided  for  by  the  mu- 
"  nicipal  law  of  the  country,  is  enforced  by  the  royal  power : 
' '  but  since  in  England  no  royal  power  can  introduce  a  new 
"  law,  or  suspend  the  execution  of  the  old,  therefore  the  law 
"of  nations  (whenever  any  question  arises  which  is  properly 
"the  object  of  its  jurisdiction)  is  here  adopted  in  its  full 
' '  extent  by  the  common  law  and  is  held  to  be  a  part  of 
' '  the  law  of  the  land. ' ' 


HISTOKTCAL   COMMENTARY.  285 

Thus  in  every  state  having  the  Common  law,  the  law  of 
nations  is  an  adopted  law  and  held  to  be  part  of  the  law  of 
the  land. 

According  to  the  letter  of  Congress  exclusive  power  re- 
Liting  to  subjects  belonging  to  the  law  of  nations  was  dele- 
gated to  the  United  States  in  Congress  assembled,  among 
which  was  the  making  of  treaties.  Treaties  were  contracts 
between  nations  proceeding  under  the  law  of  nations. 
Treaties  could  only  be  rightfully  interpreted  according  to 
the  law  of  nations.  Treaties  were  part  of  the  law  of  the 
land. 

The  doctrine  of  Blackstone  concerning  the  law  of  nations 
being  part  of  the  law  of  the  land,  and  the  doctrine  of  Con- 
gress concerning  a  treaty  being  part  of  the  law  of  the  land, 
have  thus  self -evidently  an  intimate  relation,  and  the  latter 
must  have  been  derived  from  the  former. 

In  the  next  month  (May,  1787),  at  Ncwbem,  it  was  judi- 
cially decided  that  the  confederation  of  the  United  States 
was  part  of  the  law  of  the  land  of  North  Carolina.  See 
page  250,  ante. 

No.  10. 

Of  the  origin  of  tlie  doctrine  that  the  legislature  of  a 
state  can  not  repeal  some  parts  of  the  law  of  the  land  of 
the  state. 

A  further  important  question  must  now  be  asked.  Upon 
what  authority  could  the  federal  Congress,  or  any  one,  say 
to  the  legislature  of  a  state  that  some  part  or  parts  of  the 
law  of  the  land  could  not  be  repealed  by  such  legislature  ? 

The  authority  which  Congress  had  in  mind  could  have 
been  none  other  than  the  Rhode  Island  case  of  Trevett  v, 
Weeden,  which  had  been  decided  the  previous  autumn,  as 
has  been  already  rehearsed.  Tliat  case  had  naturally  at- 
tracted the  marked  attention  of  lawyers,  statesmen  and 
public  men  throughout  the  United  States.  The  elaborate 
argument  of  Vamum,  the  counsel  for  defendant  and  the 
leading  spirit  of  the  cause,  had  been  circulated  by  him  in  a 


286  HISTORICAL   COMMENTARY. 

printed  pamiMet.  Yarmim  himself  was  a  member  of  the 
federal  Congress  and  was  present  on  March  20t]i  and  April 
13th,  1787,  when  the  treaty  question  was  debated  and  acted 
upon.*  Yarnnm'  s  professional  ability  must  have  f avourabl y 
impressed  his  colleagues  in  Congress,  for  they  elected  him 
one  of  the  Judges  of  the  Northwest  Territory  in  the  October 
follov/ing.+  There  are  therefore  special,  as  well  as  general, 
reasons  why  the  Congress  of  1787  should  have  been  duly 
impressed  with  the  decision  of  the  case  of  Trevett  ?). 
Weeden. 

In  Trevett  v.  Weeden  the  law  of  the  land  of  Rhode  Island 
was  expressly  involved.  The  clause  of  the  state  statute  of 
August  22d,  1786,  which  the  court  repelled  as  void  and  re- 
fused to  be  bound  by,  reads  thus :  "That  the  said  court, 
"when  so  convened,  shall  proceed  to  the  trial  of  the  said 
"offender,  and  they  are  hereby  authorized  so  to  do,  with- 
''  out  any  jury ^  by  a  majority  of  the  judges  present,  accord- 
"  ing  to  the  laws  of  the  laiid.''^ 

As  has  been  mentioned,  Tillinghast,  J.,  in  giving  his 
opinion,  said  that  he  * '  tt)ok  notice  of  the  striking  repug- 
"  nancy  of  the  expressions  of  the  act  '  without  trial  by  jury 
"  'according  to  the  laws  of  the  land,'  and  on  that  ground 
"gave  the  judgment  the  same  way." 

In  Yarnum's  argument  at  the  bar,  one  of  the  positions 
maintained  is  identical.  He  denies  categorically  that  an  act 
of  the  legislature  abolishing  the  trial  by  jury  would  become 
"  the  law  of  the  land,"  as  certain  ardent  politicians  in  Hhode 
Island  then  maintained.:!: 

That  in  1788  there  was  a  law  of  the  land  of  Rhode  Island, 
superior  and  derogatory  to  any  statute  violating  the  citizens' 
right  to  trial  by  jury,  was  established  by  the  judgment  in 
the  case  of  Trevett  T).  Weeden.  Rhode  Island  was  a  land 
with  a  law  of  the  land  which  in  the  opinion  of  the  state 
judges  protected  the  right  of  trial  by  jury  from  infringe- 
ment by  the  state  legislature.  The  federal  Congress  in 
April,  1787,  moved  the  state  to  take  another  step  in  the 

*  Journals  of  Congress,  Ed.  1801,  vol.  12,  pp.  22,  30,  33. 

t  The  same,  p.  138. 

X  See  pages  236  et  sea.,  ante. 


HISTORICAL   COMMENTARY.  287 

same  direction,  when  they  wrote  to  Rhode  Island  and  the 
other  states  that  in  each  the  law  of  the  land  protected  the 
faith  of  treaties  and  the  treaty  of  peace  from  infraction  by 
any  repeal  of  the  state  legislature.  The  answer  of  the  leg- 
islature of  Rhode  Island  to  the  letter  of  Congress  was  one 
of  assent,  for  in  its  September  session  of  the  same  year  it 
passed  a  statute  enacting  "that  the  treaty  of  peace  between 
"the  United  States  of  America  and  His  Britannic  Majesty 
"is  fully  binding  upon  all  the  citizens  of  this  state,  as  a 
"  laiD  of  the  land,  and  is  not  in  any  respect  to  be  receded 
"from,  misconstructed,  or  violated."  * 


No.  11. 

Of  the  meaning  of  the  words,  "  the  law  of  the  land,^^  in 
the  first  resolution  and  the  federal  letter  of  Congress. 

The  point  has  now  been  reached  when,  in  order  to  avoid 
an  important  misapprehension,  it  must  be  pointed  out  with 
precision  what  is  the  distinctive  meaning  of  the  words, 
"the  law  of  the  land,"  as  applied  to  treaties  in  the  first 
resolution  and  in  the  letter  of  Congress  on  the  treaty  ques- 
tion. It  is  to  these  texts,  and  through  them  to  the  before 
quoted  passage  of  Blackstone,  that  must  be  traced  the  origi- 
nal idea  of  the  application  of  the  words  "law  of  the  land" 
to  treaties,  as  made  in  pai-agraph  2.  YI.  of  the  constitution. 
It  will  be  found  impossible  to  understand  the  intentions  of 
the  Framers  in  their  final  action  uj)on  the  text  of  that  sec- 
tion, if  there  be  any  misapprehension  as  to  what  they  meant 
in  saying  that  treaties  shall  be  the  supreme  law  of  the  land 
and  that  the  judges  in  every  state  shall  be  bound  thereby, 
any  thing  in  the  constitution  or  laws  of  any  state  to  the  con- 
trary notwithstanding.  In  the  proper  place  it  will  be  shown 
that  the  fifth  of  their  series  of  flames  for  that  paragraph, 
the  final  result  of  careful  and  elaborate  discussion  and  ef- 
fort, can  not  be  rationally  accounted  for,  unless  "the  su- 
"preme  law  of  the  land"  mean  "the  supreme  law  of  the 

■  American  State  Papers,  I.  229.     Foreign  Affairs. 


288  HISTOKTCAL    COMMENT AP.Y. 

"several  states,"  and  not  the  supreme  laAv  of  the  United 
States. 

In  using  the  words,  "  the  law  of  the  land,"  the  first  reso- 
lution and  the  letter  of  Congress  must  have  been  understood 
by  the  states  addressed  as  meaning  the  law  of  the  land  of 
each  several  state  respectively.  The  Congress  of  the  con- 
federation, indeed,  could  not  possibly  have  meant  anything 
else  in  federally  addressing  the  states  individually.  There 
was  the  highest  authority  for  the  fact  that  each  state  had 
a  law  of  the  land  of  its  own.  In  each  of  eight  states,  the 
written  constitution  expressly  mentioned  the  law  of  the 
land  of  the  state,  and  in  a  ninth  state  the  laws  of  the  land 
thereof.  In  the  two  states  with  unwritten  constitutions,  it 
was  certain  that  there  was  a  law  of  the  land  of  each  respec- 
tively, as  shown  by  the  case  of  Trevett  v.  Weeden.  It  is  a 
rightful  presumption  that  that  great  case  suggested,  as  it 
certainly  supported,  the  peculiar  form  of  action  chosen  by 
Congress,  because  it  was  then  the  only  reported  case  recog- 
nizing that  a  fundamental  part  of  the  law  of  the  land  of  a 
state  was  a  ma|ter  of  positive  right  superior  to  any  enact- 
ments of  the  legislature  of  the  state.  The  trial  by  jury 
was  judicially  recognized  in  Trevett  v.  Weeden  to  be  such 
a  fundamental  part  of  the  law  of  the  land  of  Rhode  Island, 
and  so  too,  claimed  Congress,  were  all  treaties.  What  was 
true  of  one  state  was  true  of  all.  If  true  of  a  state  like 
Uliode  Island  with  an  unwritten  constitution,  it  was  a 
fortiori  true  of  those  in  which  written  constitutions  existed. 
There  was,  indeed,  very  soon  after  a  case  which  could  be 
quoted  as  authority  for  the  states  with  written  constitu- 
tions. This  was  Bayard  v.  Singleton.  It  was  not  early 
enough  to  anticipate  the  action  of  Congress,  but  early  enough 
for  a  prompt  confirmation  of  that  action.  It  was  also  early 
enough  to  anticipate  the  action  of  the  legislature  of  North 
Carolina,  which  in  December  of  the  same  year  passed  ' '  an 
''act  declaring  the  treaty  of  peace  between  the  United  States 
"of  America  and  the  King  of  Great  Britain  to  be  part 
^^  of  the  law  of  the  land.^'"^  As  has  been  previously  re- 
hearsed, in  that  important  case,  in  the  May  term  following 

*  American  State  Papers,  Foreign  Affairs,  I.  230. 


HISTORICAL  COMMENTARY.  289 

the  April  letter  of  Congress,  the  Supreme  Court  of  North 
Carolina  rendered  a  decision  holding  that  a  certain  act  of 
tlie  legislature  was  repugnant  to  the  constitution  of  the 
state  and  that  it  therefore  must  be  held  void  ;  that  the 
written  constitution  of  the  state  was  fundamental  law  of  the 
land  of  North  Carolina  ;  that  the  confederation  was  part  of 
the  fundamental  law  of  the  land  of  the  state  ;  and  that  the 
confederation,  like  the  state  constitution,  could  not  be  re- 
pealed by  the  state  legislature.* 

That  the  confederation  was  part  of  the  law  of  the  land 
of  a  state  and  unrepealable  by  the  legislature  thereof,  are 
points  of  the  decision,  that  are  important  links  in  the  chain 
of  authorities,  preceding  the  constitution,  which  support 
and  confirm  the  position  of  the  federal  Congress  upon  fed- 
eral treaties. 

That  the  treaty  of  peace  was  superadded  to,  and  became 
part  of,  the  law  of  the  land  of  each  several  state  is  shown 
by  the  following  cases  which  were  prior  in  date  to  the  fed- 
eral letter  of  Congress  and  were  mentioned  in  the  public 
debates  upon  the  new  constitution  in  the  lower  house  of 
the  legislature  in  South  Carolina.  On  January  16th,  1788, 
Gen.  C.  C.  Pinckney  said,  in  speaking  of  the  legal  vigour 
of  the  treaty  of  peace  in  South  Carolina  :  ''  The  treaty  had 
*' been  enrolled  in  the  prothonotary' s  ofiicebythe  express 
*' order  of  the  judges.  It  had  been  adjudged,  in  a  variety 
''of  cases,  to  he  part  of  the  law  of  the  land^  and  had  been 
"admitted  to  be  so,  whenever  it  was  pleaded.  If  this  had 
"not  been  the  case,  and  every  individual  state  had  pos- 
"  sessed  the  right  to  disregard  a  treaty  made  by  Congress, 
"no  nation  would  have  entered  into  a  treaty  with  us.*' 
Ijater  in  the  same  debate,  Pinolaiey  *'rose  to  mention  some 
"instances  he  had  omitted  of  the  treaty  with  Great  Britain 
"being  considered  in  our  courts  as  part  of  the  lam  of 
'''the  land.  The  judge  who  held  the  court  at  Ninety-six 
"  discharged  upwards  of  one  hundred  recognizances  of  per- 
'•  sons  committed  for  different  crimes,  which  fell  within  the 
"meaning  of  the  treaty.     A  man  named  Love,  accused  of 

*  See  ante  Chapter  26. 
19   0. 


A r  T»^^ 


"^^  ^\y 


290  HISTORICAL   COMMENTARY. 

*' murder,  was  liberated.  It  is  true,  the  people,  enraged  at 
' '  the  enormity  of  his  conduct,  hanged  him  soon  after  ;  but 
*'of  this  the  judicial  power  knew  nothing  until  after  its 
' '  perpetration.  Another  murderer  was  allowed  to  plead  the 
''treaty  of  peace  in  bar,  that  had  conducted  General  Pick- 
''en's  brother  into  the  hands  of  the  Indians,  who  soon 
"after  put  him  to  death."  On  the  next  day  C.  C.  Pinck- 
ney  remarked,  "  I  contend  that  the  article  in  the  new  con- 
"stitution,  which  says  that  treaties  shall  be  paramount  to 
"the  laws  of  the  land,  is  only  declaratory  of  what  treaties 
^'  were,  in  fact,  under  the  old  compact.  They  were  as  much 
''  the  law  of  the  land  under  that  confederation,  as  they  are 
"under  this  constitution.'"'^ 

The  foregoing,  it  is  contended,  establishes  the  correctness 
of  the  propositions  (1),  that  when  the  Congress  of  1787  sat 
and  the  convention  of  1787  met,  the  law  of  the  land  meant 
the  law  of  each  several  state,  and  not  the  law  of  the  United 
States,  and  (2),  that  the  treaty  of  peace  was  superadded  to, 
and  made  part  of,  the  law  of  the  land  of  each  several  state. 

]S"o.  12. 

Of  the  origin  of  the  pursuance  clause  of  paragraph 

<2.  YL 

The  origin  of  the  pursuance  clause  of  paragraph  2.  YI  re- 
mains to  be  traced.  In  order  to  avoid  repetition,  this  will 
be  done  elsewhere.  The  origin  of  that  clause  will  be  con- 
sidered in  Part  TV.  of  the  Historical  Commentary  and  will 
be  reconsidered  in  the  Textual  Commentary. 


*  4  Elliot's  Debates,  266,  370,  278 


HISTORICAL   COMMENTARY.  291 


CHAPTER  XXX. 


Of  the  federal  text  -wliicli  is  tlie  historical  antecedent 
of  the  hes^innins:  of  section  2«  III*  of  the  constitu- 
tion. 


So  much  for  the  relation  which  the  draft  of  identical 
laws,  federal  letter  and  the  resolutions  of  Congress  bear  to 
paragraph  2.  VI.  of  the  constitution.  It  is  next  necessary 
to  point  out  the  relation  which  the  same  documents  bear  to 
another  text  of  the  constitution,  mz.,  the  beginning  of  sec- 
tion 2.  III. 

The  beginning  of  section  2.  III.  provides,  inter  alia^  that 
*'the  judicial  power  shall  extend  to  all  cases  in  law  and 
"equity  arising  under  ,  .  .  treaties  made,  or  which  shall 
''be  made,  under  their  authority." 

Except  as  to  the  word  "under,"  the  origin  of  this  pro- 
vision must  be  intimately  related  to  the  following  part  of 
the  text  of  the  draft  of  identical  laws,  mz.^  that  which  pro- 
posed that  "the  courts  of  law  and  equity  in  all  causes  and 
"questions  cognizable  by  them  respectively,  and  arising 
"from  or  touching  the  said  treaty^  shall  decide  and  adjudge 
"  according  to  the  true  intent  and  meaning  of  the  same."  "* 

The  causes  and  questions  cognizable  by  courts  of  law  and 
equity  and  arising  from  a  treaty,  which  are  found  in  this 
draft  recommended  to  the  state  legislatures,  are  evidently 
precursors  of  the  cases  in  law  and  equity  arising  under 
treaties,  which  are  found  in  the  constitution,  except  as  to 

*  Journals  of  Congress,  vol.  12,  page  35. 


292  HISTORICAL   COMMENTARY. 

the  use  of  the  word  "  under  "  instead  of  the  word  "  from  " 
after  the  word  ''arising." 

The  idea  upon  which  botli  the  antecedent  and  the  subse- 
quent texts  are  framed  is  evidently  the  same.  It  is  the  idea 
that  judicial  courts,  in  questions  and  cases  of  law  and  equity, 
arising  before  them  from  or  under  a  treaty,  should  have  the 
power  and  obligation  of  deciding  and  adjudicating  accord- 
ing to  the  treaty  as  lex  juris. 

The  above  part  of  the  draft  of  identical  laws  and  the 
treaties  portion  of  section  2.  III.  have  thus  directly  this  re- 
lation to  each  other :  the  former  is  the  historical  antecedent 
of  the  latter  purely  and  simply. 

Now  the  whole  of  the  beginning  Oi.  section  2.  YI.  is 
framed  upon  one  and  the  same  system.  Of  that  system  the 
treaties  portion  is  the  key,  the  idea  upon  which  it  is  framed 
being  extended  to  the  other  portions,  which  are  concerned 
with  the  constitution  and  the  laws.  Those  other  portions 
have,  therefore,  in  a  qualified  sense,  the  same  historical  an- 
tecedent as  the  treaties  portion.  Consequently,  in  either  an 
absolute  or  a  qualified  sense,  all  portions  of  the  beginning 
of  section  2.  III.  have  an  historical  antecedent  in  the  same 
text  of  the  federal  draft  of  identical  laws  for  the  several 
states. 

From  this  and  the  preceding  chapter  it  appears  that 
paragraph  2.  YI.  and  the  beginning  of  section  2.  III.  have 
a  common  origin.  This  fact  is  of  much  importance  in  any 
commentary  upon  the  constitution.  It  is  especially  im- 
portant in  this  Essay,  which  makes  the  following  conten- 
tions concerning  those  constitutional  texts  : 

(1)  In  Part  lY.  of  the  Historical  Commentary  it  is  con- 
tended that  the  evidence  makes  it  clear  that  the  two  texts 
were  closely  connected  in  the  framing  thereof  and  that  the 
Fra.mers  intentionally  framed  them  so  as  to  be  adapted  to 
each  other. 

(2)  In  the  Textual  Commentary,  it  is  contended  that,  in- 
dependently of  the  extratextual  evidence,  the  two  texts  can 
be  shown  to  be  so  intimately  related  that  they  are  twin 
texts. 


HISTORICAL  COMMENTARY.  293 


PAKT  IV. 

Of  the  intention  of  the  Framers  of  the  constitution 
on  the  relation  of  judicial  power  to  unconstitu- 
tional legislation. 

Part  ly .  of  the  Historical  Commentary  will  be  devoted  to 
the  investigation  of  the  intentions  of  the  Framers  of  the 
constitution  concerning  the  relation  of  judicial  power  to 
unconstitutional  legislation  according  to  the  constitution 
which  they  framed. 


CHAPTER  XXXI. 


Preliminary. 


No.  1.  Of  the  intentions  of  the  Framers  in  so  far  as 
they  concern  the  subject  of  this  Essay. 

No.  2.  Of  the  public  law  existing  during  the  sessions  of 
the  Framers^  convention  and  of  the  importance  thereof. 

No.  3.  Of  the  views  of  the  Framers  in  convention  con- 
cerning the  constitutional  history  of  the  first  eleven  years 
of  independence 


This  chapter  will  first  state  what  this  investigation  will 
seek  to  prove  concerning  the  intentions  of  the  Framers  and 


294  HISTOEICAL   COMMENTARY. 

then  present  historical  considerations  elucidating  their  po- 
sition in  beginning  the  task  of  framing  the  new  consti- 
tution. 


No.  1. 

Of  the  intentions  of  the  Framers  of  the  constitution  in 
so  far  as  they  concern  the  subject  of  this  Essay. 

In  this  and  the  following  six  chapters,  it  will  be  sought 
to  prove  that  the  Framers  of  the  constitution  actually  in- 
tended, 

First :  that  the  courts  of  the  several  states  should  become 
competent  and  obliged  in  all  litigations  before  them,  to  de- 
cide upon  the  questioned  (federal)  constitutionality  of  state 
laws  and  state  constitutions,  and  to  hold  the  same  to  be 
void  in  so  far  as  contrary  to  the  constitution  and  constitu- 
tional laws  and  treaties  of  the  United  States : 

\  Second :  that  the  right  to  decide  upon  the  questioned 
constitutionality  of  U. ,  S.  laws  and  to  hold  them  to  be  void, 
when  unconstitutional,  should  be  a  right  belonging  to  the 
courts  of  the  several  states  in  all  litigations  before  them  : 

Third :  that  the  U.  S.  Supreme  Court  should  be  compe- 
tent in  all  litigations  before  it  to  decide  upon  the  questioned 
(federal)  constitutionality  of  state  laws  and  state  constitu- 
tions and  to  hold  the  same  4;o  be  void  in  so  far  as  contrary 
to  the  constitution  and  constitutional  laws  and  treaties  of 
the  United  States : 

Fourth  :  that  the  U.  S.  Supreme  Court  should  be  compe- 
tent in  all  litigations  before  it,  to  decide  upon  the  ques- 
tioned constitutionality  of  U.  S.  laws,  and  to  hold  the  same 
to  be  void  when  unconstitutional. 

The  foregoing  propositions  in  strictness  cover  the  subject 
of  this  Essay,  but  the  expressed  intentions  of  the  Framers 
can  not  be  properly  explained  and  elucidated  without  point- 
ing out  that  they  intended  also, 
\      Fifth  :  that  whenever  the  judiciary  of  a  state  in  any  liti- 
I  gation  should  decide  the  question  of  (federal)  constitution- 
l  ality  in  favour  of  the  state  law  or  state  constitution,  im- 


HISTORICAL   COMMENTARY.  295 

peached  as  being  wholly  or  partially  so  unconstitutional, 
there  should  be  a  right  of  appeal  to  the  U.  S.  Supreme 
Court  upon  that  question  : 

Sixth :  and  that  whenever  the  judiciary  of  a  state  in  any 
litigation  decided  the  question  of  constitutionality  against 
a  U.  S.  law  impeached  as  unconstitutional,  there  should  be 
a  right  of  appeal  to  the  .U.  S.  Supreme  Court  upon  that 
question. 

These  propositions  are  here  asserted  as  part  of  the  his- 
tory of  the  constitution,  but,  according  to  the  plan  of  this 
Essay,  it  must  be  subsequently  proved  that  they  also  agree 
with  the  express  meaning  of  the  constitutional  text  inde- 
pendently of,  and  without  reliance  upon,  the  debates  and 
proceedings  of  the  convention.  As  historical  propositions, 
merely,  they  depend  upon  a  due  consideration  of  the  his- 
torical evidence,  the  principal  part  of  which  consists  of  the 
debates  and  journal  of  the  convention. 

No.  2. 

Of  the  'public  law  existing  during  the  sessions  of  the 
Framers'  convention  and  of  the  importance  thereof. 

The  new  constitution  was  framed  under  the  old  confeder- 
ation. If  it  had  failed  to  secure  the  ratification  of  nine 
states,  the  confederation  would  have  remained  in  vigour  as 
public  law.  The  federal  law  of  the  Union  and  the  munici- 
pal laws  of  the  several  states  of  the  Union,  as  existing  in 
the  summer  of  1787,  together  made  the  legal  ground  upon 
which  the  Framers  met  and  from  which  they  started  in 
framing  the  new  constitution.  Their  starting  place  is  one 
of  the  points  of  view  from  which  their  work  must  be  re- 
garded by  historical  investigators. 

During  the  eleven  years  previous  to  the  meeting  of  the 
Framers'  convention  of  May  14th,  1787,  legal  principles  had 
been  developing  upon  the  subject  of  republican  constitutions 
written  and  unwritten,  in  their  relations  to  the  lex  terrae 
of  each  state  and  to  the  federal  law  of  the  United  States. 


296  HISTORICAL   COMMENTARY. 

After  March  14tli,  1781,  federal  rights  were  based  upon  the 
written  Articles  of  Confederation. 

In  1787,  nine  of  the  states  possessed  perfect  written  con- 
stitutions. Two  other  states,  Virginia  and  New  Jersey, 
were  in  a  peculiar  constitutional  situation.  Each  had  a  writ- 
ten act  of  government,  done  in  the  name  of  the  people, 
which  had  been  established  and  poit  into  operation  in  1776 
before  independence,  but  in  readiness  for  that  event.  Each  of 
these  instruments  seems  to  have  been  generally  regarded  as 
a  conditional  written  constitution,  which  became  purged  of 
the  condition,  when  the  colonies  became  states. 

On  the  other  hand,  in  Connecticut  and  Rhode  Island,  the 
state  constitutions  were  unwritten  or  consuetudinary.  As 
such  they  are  of  peculiar  interest  both  inherently,  and  for 
comparison  with  the  constitutions  of  the  other  states. 

It  is  only  necessary  to  read  the  Framers'  debates  upon 
the  proposed  modes  of  ratifying  the  new  constitution  to  see 
how  important  had  been  the  recent  development  of  new 
ideas  in  public  law  and  constitutional  prudence  during 
the  previous  eleven  years.  Such  development  was  natural, 
indeed  inevitable,  in  a  period  of  wonderful  activity  in  or- 
ganizing governments  upon  the  recently  discovered  prin- 
ciple of  written  constitutions.  This  new  principle  was  an 
American  creation.  Now,  it  is  a  European  as  well  as  an 
American  institution.  In  1787,  when  the  great  majority  of 
the  several  states  had  adopted  written  municipal  constitu- 
tions, the  Framers  proposed  to  write  a  federal  constitution 
for  the  United  States.  This  resolution  was  the  result  of  the 
history  of  the  previous  eleven  years,  during  which  public 
right,  law  and  fact  had  so  rapidly  developed. 


No.  3. 

Views  of  the  Framers  in  convention  concerning  the  con- 
stitutional history  of  the  first  eleven  years  of  indepen- 
dence. 

The  following  remarks  of  Ellsworth  in  the  convention, 
on  July  23d,  will  first  be  quoted.     In  advocating  ratifica- 


HISTORICAL   COMMENTARY.  297 

tions  of  the  new  constitution  by  the  legislatures  and  not  by- 
popular  conventions,  he  remarked : 

"It  was  said  by  Colonel  Mason,  in  the  first  place,  that  the 
"legislatures  had  no  authority  in  the  case.  .  .  .  As  to  the 
"first  point,  he  observed  that  a  new  set  of  ideas  lias  crept  in 
^"^  since  the  Articles  of  Confederation  were  established. 
''Conventions  of  the  people^  or  with  power  derived  ex- 
'^  pres  sly  from  the  people,  were  not  then  thought  of.  The 
"legislatures  were  then  considered  as  competent.  Their 
' '  ratification  has  been  acquiesced  in  without  complaint.  To 
"whom  have  Congress  applied  on  subsequent  occasions  for 
"  further  powers  \    To  the  legislatures,  not  to  the  people."* 

These  observations  are  most  important,  for  "the  case"  men- 
tioned by  Ellsworth  was  the  case  of  the  constitution  itself. 
Randolph  had  previously  asserted  as  a  .matter  of  course 
that  there  liad  been  a  great  development  of  ideas  and  knowl- 
edge upon  such  subjects,  since  the  framing  of  the  Articles  of 
Confederation.  On  May  29th,  in  speaking  of  the  defects 
of  the  confederation,  he  said  that  its  authors  had  "  done  all 
"  that  patriots  could  do,  in  the  then  infancy  of  the  science 
"of  constitutions  and  of  confederacies. "f 

That  the  period  of  eleven  years  between  1770  and  1787 
had  been  one  of  new  and  original  experience  in  polity,  was 
Rutledge's  opinion.  In  speaking  of  revenue  bills  on  Au- 
gust 13th,  he  dwelt  on  "  our  own  experience  of  eleven  years." 
He  asserted  that  the  clauses  in  the  state  constitutions,  relat- 
ing to  such  bills,  "  had  been  put  in  through  a  blind  adher- 
"ence  to  the  British  model.  If  the  work  was  to  be  done 
"over  now,  they  would  be  omitted.":]: 

Although  no  written  constitution  was  then  twelve  years 
old,  yet  in  the  debate  of  June  4th,  Gerry  said  distinctly,  in 
speaking  of  the  judiciary  under  the  new  constitution,  "  they 
"  will  have  a  sufficient  check  against  encroachments  of  their 
"  own  department  by  their  exposition  of  the  laws,  which 
"involved  a  power  of  deciding  on  their  constitutionality. 
"  In  some  states  the  judges  had  actually  set  aside  laws,  as 

*  Elliot  V.  nr>4.  ' 

t  lb.  120. 
X  lb.  419. 


2^8  HISTORICAL    OOMMEIS-TAKY. 

' '  being  against  the  constitution.  This  was  done,  too,  with 
''  general  approbation.'^^- 

On  July  17th  Madison  distinctlv  alluded  with  approval 
to  the  case  of  Trevett  v.  Weeden,  saying:  "In  Rhode 
'^  Island,  the  judges  who  refused  to  execute  an  unconsti- 
"  tutlonal  law  were  displaced,  and  others  substituted,  by 
"  the  legislature,  who  would  be  the  willing  instruments  of 
"their  masters."  f 

It  will  be  observed  that  Gerry' s  remark  applies  only  to 
some  of  the  states.  It  had  not  been  proven  in  all  that  judi- 
cial courts  could  decide  questioned  statutes  to  be  unconsti- 
tutional and  hold  them  therefore  void.  Although  there 
was  a  written  constitution  in  New  York,  the  law  of  that 
state  was  identical  with  the  English  law,  as  laid  down  by 
Blacks  tone,  if  the  decision  in  Rutgers  x.  Waddington  was 
correct.^ 


CHAPTER  XXXII. 


Of  tlie  Framers'  intentions  in  regrard  to  tlie  state 
courts. 

Tliat  the  Framers  intended  that  tlie  state  courts 
sliould  cease  to  1)e  bound  V%y  tlie  old  confederation 
and  become  bound  by  tlie  new  constitution. 

Xbat  tbey  intended  tbat  tbe  state  courts  should  not 
be  bound  by  unconstitutional  acts  of  Cons:ress  and 
should  be  competent  to  decide  ijvhether  any  such 
act  is  constitutional  or  unconstitutional. 


No.  1.  Of  the  Framers^  ideas  concerning  tlie  state 
courts. 

No.  2.  Of  the  Framers''  ideas  concerning  state  statutes 
posterior  to  the  confederation. 

*  Elliot  V.  151. 

t  lb.  321. 

X  See  ante  Chapter  26. 


HISTORICAL    COMMENTARY.  299 

No.  3.  Of  the  Framers'  ideas  concerning  the  ratifica- 
lions  of  the  confederation. 

No.  4.  Of  the  old  confederation  as  an  obstacle  to  ratify- 
ing the  new  constitution. 

No.  5.  Of  the  pursuance  of  the  confederation  and  the 
Framers'  mews  thereupon. 

No.  6.  Of  the  pursuance  of  the  confederation^  the  pur- 
suance of  the  constitution^  and  the  relation  of  both  to  acts 
of  Congress  which  are  not  made  in  pursuance  of  the  con- 
stitution. Of  the  Framers'  intentions  concerning  such 
acts  of  Congress. 

No.  7.  Conclusion  as  to  the  Framers"  intentions  con- 
cerning the  competency  of  the  state  courts  in  cases  in 
which  the  validity  of  acts  of  Congress  is  questioned  on  the 
ground  that  they  are  not  made  in  pursuance  of  the  consti- 
tution. 


The  first  two  of  the  series  of  propositions  stated  in  chapter 
31,  No.l,  are  concerned  with  the  Framers'  intentions  in  regard 
to  the  state  courts.  The  first  proposition  is  concerned  with 
the  relation  of  the  state  courts  to  state  legislation  ques- 
tioned as  federally  unconstitutional.  The  second  is  con- 
cerned with  the  relation  of  the  state  courts  to  acts  of  Con- 
gress questioned  as  unconstitutional.  In  theory  the  fore- 
going is  the  proper  order  of  stating  those  propositions.  In 
practice,  however,  for  the  present  historical  purpose,  the 
best  method  is  to  discuss  the  second  proposition  before  the 
first ;  for,  in  an  exposition  of  the  Framers'  intentions,  the 
]|;elations  of  the  state  courts  to  the  old  confederation,  to  the 
new  constitution,  and  to  the  acts  of  the  new  Congress  must 
go  together.  The  consideration  of  the  series  6f  propositions 
laid  down  in  chapter  31,  No.  1,  will  therefore  begin  with 
the  second,  Avhich  runs  as  follows  : 

That  the  Framers  of  the  constitution  actually  intended 
that  the  right  to  decide  upon  the  questioned  constitution- 


300  HISTORICAL   COMMENTARY. 

ality  of  U.  S.  laws  and  to  hold  them  to  be  void,  when  un- 
constitutional, should  be  a  right  belonging  to  the  courts  of 
the  several  states  in  all  litigations  before  them. 

No.  1. 

Of  the  Framers'  ideas  concerning  the  state  courts. 

In  the  opinion  of  Madison  and  the  Framers  generally  the 
judicial  difficulty  t)be  met  under  the  new  constitution  re- 
lated to  the  courts  of  the  several  states,,  and,  not  to  those 
of  the  United  States.  As  will  be  seen  further  on,  there 
was  no  opposition  on  August  27th  to  organizing  the  judi- 
cial power  of  the  United  States,  so  that  the  Supreme  Court 
could  judicially  decide  acts  of  Congress  to  be  unconstitu- 
tional and  hold  them  therefore  void.  But  how  to  establish 
the  validity  of  the  constitution  and  the  constitutional  laws 
and  treaties  of  the  United  States,  in  the  courts  of  the  sev- 
eral states,  was  a  matter  of  great  perplexity,  upon  which 
the  Framers  differed.  How  to  prevent  the  state  judges 
from  giving  precedence  to  the  constitution  and  laws  of  their 
respective  states  when  conliicting  with  those  of  the  Union, 
was  a  problem  for  which,  not  merely  one,  but  several,  so- 
lutions were  suggested  in  the  convention. 

No.  2. 

Of  the  Framers''  ideas  concerning  state  statutes  poste- 
rior to  the  confederation. 

As  has  been  previously  mentioned,  it  was  in  1787  a  grave 
question  of  federal  law  whenever  conflicts  arose  in  the  state 
courts  between  state  statutes  and  the  confederation,  whether 
such  of  the  former  as  were  made  posterior  to  the  comple- 
tion of  the  confederation  were  on  the  same  footing  as  those 
that  were  made  prior  thereto.  Madison's  remarks  upon 
this  question  in  Congress  on  March  21st,  have  already  been 
referred  to.  His  remarks  on  the  same  subject  on  June  5th, 
in  the  convention,  will  now  be  quoted.  In  supporting  pop- 
ular ratifications  of  the  constitution,  in  the  debate  of  June 


HISTORICAL   COMMENTARY.  301 

5tli,  Madison  '*  thought  this  provision  essential.  The  Ar- 
*' tides  of  Confederation  themselves  were  defective  in  this 
"respect,  resting,  in  many  of  the  states,  on  the  legislative 
"sanction  only.  Hence^  in  conflicts  between  acts  of  the 
''states  and  of  Congress,  especially  where  the  former  are 
"  of  posterior  date,  and  the  decision  is  to  he  made  by  state 
''tribunals,  an  uncertainty  must  necessarily  prevail; 
"  or  rather,  perhaps,  a  certain  decision  in  favour  of  the 
"  state  authority r* 

No.  3. 

Of  the  Framers'  ideas  concerning  the  ratifications  of 
the  confederation. 

It  will  be  observed  that  Madison's  observations  compre- 
hend many,  but  not  all,  of  the  states.  As  an  example  of  a 
state  in  which  the  Articles  of  Confederation  did  not  rest 
exclusively  upon  a  legislative  ratification,  Massachusetts 
may  be  mentioned.  The  constitution  of  Massachusetts  was 
made  prior  to  the  completion  of  the  confederation,  but  after 
that  state  had  ratified  that  instrument.  It  was  adopted  in 
1780,  and  was  evidently  framed  in  expectation  of  the  con- 
federation being  completed.  This  venerable  constitution, 
now  the  oldest  written  constitution  in  the  world,  provides 
in  its  Part  I.,  Article  4,  that  "Tlie  people  of  this  common- 
"  wealth  have  the  sole  and  exclusive  right  of  governing 
"themselves  as  a  free,  sovereign,  and  independent  State, 
"and  do,  and  forever  hereafter  shall,  exercise  and  enjoy 
"every  power,  jurisdiction,  and  right  which  is  not,  or  may 
"not  hereafter  be,  by  them  expressly  delegated  to  the 
"United  States  of  America  :n  Congress  assembled. "t 

From  this  provision  it  results  that  the  tribunals  of  Massa- 
chusetts, in  making  decisions  concerning  conflicts  between 
state  law  and  federal  law,  had  in  1787  no  embarrassment 
caused  by  any  mere  legislative  ratification.  Whether  the 
act  of  the  state  legislature  involved  was  prior  or  posterior 

*  Elliot  V.  157. 

t  Poor's  Charters  and  Constitutions,  p.  958. 


302  HISTORICAL   COMMENTARY. 

to  the  confederation,  mattered  not.  In  all  cases  a  judge  of 
Massachusetts  was  bound  to  proceed  upon  the  basis  that  the 
constitution  as  well  as  the  legislature  of  his  state  had  sanc- 
tioned the  confederation.  Madison's  criticism  upon  the 
judicial  operation  of  federal  acts  did  not,  therefore,  apply- 
to  Massachusetts. 

But  while  the  express  sanction  of  the  confederation  by 
the  state  constitution  avoided  the  difficulty  in  question,  it 
raised  another  of  great  embarrassment  to  the  Framers'  con- 
vention. This  very  sanction  was  an  obstacle  to  the  legisla- 
ture of  Massachusetts  ratifying  any  new  articles  of  union  or 
new  federal  constitution  proposed  to  it  otherwise  than  in 
pursuance  of  the  old  confederation. 

The  case  of  the  written  constitution  of  New  York  will 
throw  further  light  on  this  point.  In  the  convention  on 
July  23d,  King  alluded  to  the  refusal  of  that  state  to  grant 
to  Congi'ess  the  impost  power  as  recommended  by  that  body 
on  April  18th,  1783.  He  remarked  "that,  among  other  ob- 
"  jections  made  in  the  state  of  New  York  to  granting  powders 
"to  Congress,  one  had  been,  that  such  powers  as  would 
"operate  within  the  states  could  not  be  reconciled  to  the 
"  constitution,  and  therefore  were  not  grantable  by  the  leg- 
"islative  authority."  See  Elliot  Y.  355,  and  Journals  of 
Congress  for  August  11th  and  23d,  1786.  This  was  one  of 
the  reasons  why  King  preferred  a  reference  to  popular  con- 
ventions, as  the  most  certain  means  of  obviating  "all  doubts 
"and  disputes  concerning  legitimacy  of  the  new  consti- 
''Hution.'^^ 


No.  4. 

Of  the  old  confederation  as  an  obstacle  to  ratifying  the 
new  constitution. 

It  will  thus  be  seen  that  the  existing  confederation  was 
to  the  Framers  a  lion  in  the  way  of  the  meditated  constitu- 
tion. It  was  a  languishing,  perhaps  even  dying,  but  cer- 
tainly not  a  dead  lion.  Only  the  month  before  the  conven- 
tion met,  the  United  States  in  Congress  assembled  had  fed- 


HISTORICAL   COMMENTARY.  303 

erally  declared  to  all  the  states  that  the  treaty  of  peace  was 
the  law  of  the  land  of  every  state  by  virtue  of  the  confedera- 
tion. In  spite  of  this,  as  ratification  by  all  the  states  could 
not  be  counted, upon  in  a  convention  which  represented  less 
than  all  the  states,  the  Framers  had  to  find  a  way  for  the 
state  judges  to  become  unbound  by  the  old  confederation, 
while  devising  means  for  binding  them  by  the  new  consti- 
tution. 

What  has  been  previously  said  relating  to  Trevett  v. 
Weeden,  Bayard  v.  Singleton,  and  Blackstone  on  the  law 
of  nations  may  here  be  recalled.  In  each  state,  the  confed- 
eration, when  ratified  by  the  legislature,  became  part  of  the 
law  of  the  land  of  the  state.  The  treaty  of  peace  was  also 
part  of  the  law  of  the  land  of  each  state.  The  legal  position 
of  the  confederation  before  the  state  courts  thus  required 
the  gravest  consideration,  if  it  was  to  be  successfully 
changed.  Captious  criticism  like  impeaching  the  confedera- 
tion as  conflicting  with  the  common  law  {cf.  Elliot  Y.  353), 
was  worse  than  useless. 

On  June  8th,  ^Madison,  as  may  be  learned  from  Yates, 
supported  an  unlimited  legislative  power  of  negativing  state 
laws.  He  held  that  the  limited  negative  proi30sed  by  the 
resolution  under  consideration  would  be  inefiicient.  "  The 
''  judges  of  the  state  must  give  the  state  laws  their  opera- 
"tion,  although  the  law  abridges  the  rights  of  the  national 
"government."'^  This  was  before  the  existing  constitu- 
tional provision  had  been  moved,  but  it  shows  what  would 
be  the  judicial  difficulty  in  the  several  states,  under  the  new 
constitution,  which  any  constitutional  provision  would  have 
to  overcome. 

In  discussing  the  modes  of  ratification,  on  July  23d, 
Madison  said  that  "  he  considered  the  difference  between  a 
"  system  founded  on  the  legislatures  only,  and  one  founded 
"on  the  people,  to  be  the  true  difference  between  a  league 

"or  treaty,  and  a  constitution A  law  violating  a 

"treaty  ratified  by  a  pre-existing  law  might  be  respected  by 
"the  judges  as  a  law,  though  an  unwise  and  perfidious  one. 
"  A  law  molatlng  a  const itut Ion  established  hy  the  people 

*  Elliot  I.  400,  V.  1 71. 


304  HISTORICAL   COMMENTARY. 

'' themselves  would  he  considered  hy  the  judges  as  null  and 
"void:''' 


No.  5. 

Of  the  pursuance  of  the  confederation  and  th^  Framers^ 
mews  thereupon. 

In  the  debate  of  July  23d. ,  on  ratifying  tne  new  consti- 
tution, the  great  question  was  whether  the  ratification  of 
the  states  should  be  made  by  the  ordinary  legislatures  or  by 
popular  conventions. 

Gerry  said  that  ' '  he  considered  the  confederation  to  be 
' '  paramount  to  any  state  constitution.  The  last  article  of 
^^it,  authorizing  alterations,  must  consequently  be  so  as 
'^well  as  the  others  ;  and  everything  done  in  pursuance  of 
"the  article  must  have  the  same  high  authority  with  the 
''  article,  "t  It  is  here  to  be  remarked  that  Gerry  speaks  of 
things  done  in  pursuance  of  an  article  of  the  confederation. 
As  to  things  done  not  in  pursuance  of  the  articles  of  confed- 
eration, Gouverneur  Morris' s  remarks  in  the  same  debate 
are  of  great  importance.  According  to  him,  it  must  have 
then  been  true  in  point  of  law,  that  a  state  court  could  de- 
cide an  act  of  the  Congress  of  the  confederation  to  be  null 
and  void  because  not  made  in  pursuance  of  the  Articles  of 
Confederation.     Gouverneur  Morris  observed  : 

' '  If  the  Confederation  be  pursued^  no  alteration  can  be 
"  made  without  the  unanimous  consent  of  the  legislatures. 
"  Legislative  alterations  not  conformable  to  the  federal  com- 
''pact  would  clearly  not  be  valid.  The  judges  would  con- 
"  sider  them  null  and  void.":j: 

That  is  to  say,  an  act  of  the  Congress  of  the  confederation 
promulgating  an  alteration  of  the  Articles  of  Confederation 
confirmed  by  the  legislatures  of  less  than  thirteen  states 
could  legally,  and  would  certainly,  be  decided  by  the  judges 
of  the  state  courts  to  be  contrary  to  the  13th  Article  of  the 
Confederation,  and  therefore  be  held  null  and  void. 

*  EUiot  v.  356. 
t  lb.  353. 
X  lb.  355.. 


HISTORICAL   COMMENTARY.  305 

It  is  indisputable  that  the  great  majority  of  the  conven- 
tion held  that  popular  ratifications  of  the  constitution  were 
indispensable,  if  a  union  of  less  than  thirteen  states,  as  well 
as  a  union  of  all,  was  to  be  provided  for.  A  partial  union, 
as  well  as  a  unanimous  one,  is  foreseen  by  Article  VII  of  the 
constitution,  which  reads : 

"  The  ratification  of  the  conventions  of  nine  states  shall 
*'  be  sufficient  for  the  establishment  of  this  constitution  be- 
''  tween  the  states  so  ratifying  the  same." 

This  foresight  had  its  effect,  for  an  actually  existing 
partial  union  of  the  states  was  the  ladder  by  which  a  union 
of  all  was  reached.  Thus,  after  nine  and  before  all  the 
states  had  ratified  the  new  constitution,  each  then  existing 
ratification  presented  judicially  a  very  peculiar  case  to  the 
courts  of  its  respective  state.  The  question,  utrum  hie 
casus  ad  jus  antiquum  ajptaudus  sit^  could  only  be  an- 
swered in  the  negative  ;*  for  it  was  impossible  to  adapt  the 
case  to  the  13th  article  of  the  confederation  requiring  any 
alteration  thereof  to  be  agreed  to  by  Congress  and  "con- 
'' firmed  by  the  legislatures  of  every  state." 

As  a  matter  of  fact,  the  constitution  went  into  operation 
with  only  eleven  states  included  within  the  union  of  the 
constitution.  This  was  not  accomplished  by  moving  the 
legislatures  of  the  several  states  to  act  under  the  confedera- 
tion. Nothing  of  the  sort  was  professed  to  be  done.  What 
was  professed  was  to  move  the  constituents  of  those  legis- 
latures to  act  praeter  the  confederation.  In  each  state  mak- 
ing a  ratification  of  the  new  constitution,  the  judges  were 
by  that  ratification  commanded  by  the  people  thereof  to 
hold  it  to  be  the  supreme  law  of  the  land.  Thereby  the 
confederation  was  to  cease  to  be  the  law  of  the  land  of  that 
state  and  the  constitution  was  to  be  substituted  in  its  place. 

*  Compare  Dig.  lib.  28.  tit.  2.  /.  29.  g  27. 


20  C. 


306  HISTORICAL   COMMENTARY. 

No.  6. 

Of  tl I e  pursuance  of  the  confederation^  the  pursuance  of 
the  constitution^  and  the  relation  of  both  to  acts  of  Congress 
which  are  not  made  in  pursuance  of  the  constitution.  Of 
the  Framers'  intentions  concerning  such  acts  of  Congress. 

It  IS  of  extreme  importance  to  observe  the  signification  of 
Morris's  language :  "if  the  confederation  \)Q pursued.^''  It 
is  well  known  how  important  was  Morris' s  influence  upon 
the  language  of  the  constitution."^  Shortly  before  he  had 
spoken,  Gorham  had  said  :  "if  the  last  article  of  the  Con- 
"  federation  is  to  be  pursued^  the  unanimous  concurrence 
"of  the  states  will  be  necessary."! 

Both  Morris  and  Gorham  pursued  the  confederation  in 
applying  the  verb  ' '  pursue ' '  to  the  execution  thereof  in  the 
various  casus  foederis^  and  Gerry  also  did  so  in  a  like  use 
of  the  noun  "pursuance."  Its  11th  article  speaks  of  the 
"assembling  of  the  United  States  in  j)ursuance  of  this  Con- 
' '  federation. ' '  The  intimate  relation  between  this  language 
and  Morris's  is  unmistakable.  The  Yerb pursue^  the  adjec- 
tive pursuant^  and  the  noun  pursuance  are  three  forms  of 
a  technical  term  of  law,  the  meaning  of  which  will  be  dis- 
cussed when  the  text  of  paragraph  2.  VI.  is  critically  exam- 
ined. At  the  present  moment,  when  the  question  is  merely  as 
to  the  intentions  of  the  Framers,  it  suffices  to  point  out  that 
according  to  Morris  an  act  of  the  Congress  of  the  confedera- 
tion in  which  the  confederation  was  not  pursued,  or  (to  use 
the  very  words  of  its  12th  article)  which  was  not  made  "in 
"pursuance  of  this  confederation,"  must,  under  the  confed- 
eration, legally  be  held  null  and  void  by  the  judges  of  the 
state  courts.  Morris's  language  was  no  mere  personal  opin- 
ion, but  it  was  one  representing  both  the  opinion  and  action 
of  the  convention.  He  spoke  thus  on  July  23d.  Six  days 
previously,  on  July  17th,  the  convention  had  applied  the 
term,  "in  pursuance  of,"  to  the  making  of  acts. or  laws  of 

*  Bancroft's  History  of  the  Constitution,  II.  207,  and  Spark's  Life  of  Morris, 
III.  323. 

t  Elliot  V.  354. 


HISTORICAL   COMMENTARY.  307 

the  United  States  by  the  future  legislature  or  Congress  in 
pursuance  of  the  Articles  of  Union.  This  was  done  in  a 
resolution  which  was  the  basis  of  paragraph  2.  YI.  of  the 
constitution  and  which  was  in  August  and  September  three 
times  reconsidered  and  twice  amended  by  the  convention. 
In  tliis  repeated  action  the  application  of  the  term  was  em- 
phasized, the  ''constitution"  being  substituted  for  the 
"Articles  of  Union,"  and  "  in  pursuance  thereof^  for  "in 
"pursuance  of."  According  to  the  clauses  of  paragraph  2. 
yi.  of  the  constitution  "  the  laws  of  the  United  States  which 
"shall  be  made  in  pursuance  thereof  ^^  bind  the  state 
judges,  and  withstand  any  state  legislation  to  the  contrary. 
A  convention  which  thought  that  the  acts  of  the  Congress 
of  the  confederation  must  be  made  in  pursuance  of  the  con- 
federation, and,  if  not  so  made,  must  necessarily  be  held 
null  and  void  by  the  state  Judges,  and  which  therefore  pro- 
ceeded praeter  the  confederation,  must  undoubtedly  have 
intended  a  certain  thing  in  framing  the  constitutional  text 
upon  such  a  model.  They  must  have  intended  that  the 
future  laws  of  the  United  States,  which  were  not  made  in 
pursuance  of  the  new  constitution,  should  no^  bind  the  state 
judges,  but  should  by  them  be  held  therefore  null  and  cold. 


No.  7. 

Conclusion  as  to  the  Framers''  intentions  concerning 
the  competency  of  the  state  courts  in  cases  in  which  the 
validity  of  acts  of  Congress  is  questioned  on  the  ground 
that  they  are  not  made  in  pursuance  of  the  constitution. 

Thus  the  Framers  must  actually  have  intended  that  the 
state  courts  should  be  competent  to  decide  whether  a  ques- 
tioned act  of  Congress  be  made  or  not  made  in  pursuance  of 
the  constitution  and  to  hold  it  valid  or  void  accordingly. 

In  other  words,  namely  in  those  of  the  second  proposi- 
tion contended  for,*  the  Framers  intended  that  the  right  to 
decide  upon  the  questioned  constitutionality  of  the  U.  S. 

*  On  page  294,  ante. 


308  HISTORICAL   COMMENTARY. 

laws  and  to  hold  them  void,  when  unconstitutional,  should 
be  a  right  belonging  to  the  courts  of  the  several  states. 

It  should  perhaps  here  be  more  fully  stated  why  this 
second  proposition  as  to  the  Framers'  intention  has  been 
discussed  before  the  first  in  the  series  laid  down  in  chapter  31, 
JSTo.  1. 

In  a  critical  commentary  upon  the  text  of  the  constitu- 
tion, the  second  proposition  should  be  considered  after  the 
first,  for  it  relates  to  a  right  which  is  a  limitation  upon  an 
obligation  contained  in  the  first.  But  in  an  explanatory 
view  of  the  intentions  of  the  Framers  as  to  the  new  consti- 
tution, which  involves  the  relation  thereof  to  the  old  con- 
federation, it  has  naturally  and  unavoidably  come  first  into 
consideration.  As  will  be  seen  from  the  foregoing,  the 
present  right  of  a  state  court  to  decide  whether  or  not  a 
U.  S.  law  has  been  made  in  pursuance  of  the  constitution^ 
is  historically  inseparable  from  the  previously  existing  right 
of  the  same  court  to  decide  whether  or  not  a  federal  act  was 
made  in  pursuance  of  the  confederation.  This  previously 
existing  right  had  to  be  fully  considered  by  the  convention 
in  framing  article  YII.  of  the  constitution,  which  related  to 
the  ratification  thereof  by  the  conventions  of  the  states.  In 
so  doing,  what  they  thought  and  intended  concerning  the 
present  right  aforesaid  became  manifest. 


CHAPTER  XXXIII. 


Further  consideration  of  tlie  intentions  of  the  Fram- 
ers concerning:  the  state  courts.  Xhat  they  intended 
that  the  state  courts  should  he  competent  and 
ohligfed  to  decide  upon  the  questioned  federal  con- 
stitutionality of  state  leg:islation  and  to  hold  the 
same  Toid  in  so  far  as  so     uconstitutional. 

Fo.  1.  Of  conflicts  between  the  laws  of  the  Union  and 


HISTORICAL   COMMENTARY.  309 

those  of  the  states  and  the  relation  thereof  to  the  framing 
of  the  new  constitution. 

No.  2.  How  the  plans  for  a  new  union,  which  were  pre- 
sented to  the  convention,  were  affected  by  conflicts  of  the 
laws  of  the  states  with  the  confederation  and  federal 
treaties. 

No.  3.  Of  the  two  principal  plans  of  union,  which  were 
presented  in  the  convention. 

No.  4.  Of  the  two  methods  proposed  in  the  convention 
for  settling  conflicts  between  the  laws  of  the  Union  and 
those  of  the  states. 

No.  5.  Of  the .  legislative  method  for  settling  conflicts 
between  the  laws  of  the  Union  and,  those  of  the  states. 

No.  6.  Of  the  judicial  method  for  settling  conflicts  be- 
tween the  laws  of  the  Union  and  those  of  the  states. 

No.  7.  Of  the  intentions  of  the  Framers  in  rejecting  the 
legislative  method  and  adopting  the  judicial  method. 

No,  8.  History  of  the  proceedings  of  the  convention  in 
framing  the  text  concerning  the  judicial  method  for  set- 
tling conflicts  between  the  laws  of  the  Union  and  those  of 
the  states. 

No.  9.  Of  the  meaning  of  the  words  **  law  of  the  land'''' 
in  the  constitution,  according  to  the  intentions  both  of  the 
committee  and  the  convention. 

No.  10.  Conclusion  as  to  the  correctness  of  the  first 
proposition  concerning  the  Framers'  intentions  laid  down 
in  chapter  31,  No.  1. 

No.  11.  Of  the  connection  between  the  first  and  second 
propositions  concerning  the  Framers^  intentions  laid 
down  in  chapter  31,  No,  1, 


310  HISTORICAL   COMMENTARY. 

No.  1. 

Of  conflicts  between  the  laws  of  the  Union  and  those  of 
the  states  and  the  relation  thereof  to  the  framing  of  the 
new  constitution. 

The  intentions  of  the  Framers  will  now  be  considered  in 
regard  to  the  matter  stated  in  the  first  proposition  laid  down 
in  chapter  31,  No.  1,  namely,  that  the  Framers  actually  in- 
tended that  the  courts  of  the  several  states  should  become 
competent  and  obliged  in  all  litigations  before  them,  to  decide 
upon  the  questioned  (federal)  constitutionality  of  state  laws 
and  state  constitutions,  and  to  hold  the  same  to  be  void  in 
so  far  as  contrary  to  the  constitution  and  constitutional 
laws  and  treaties  of  the  United  States. 

The  Framers  were  agreed  upon  the  prime  necessity  of 
finding  a  proper  method  of  settling  conflicts  between  the 
laws  of  the  Union  and  those  of  the  states,  and  well  they 
might  be.  Such  conflicts  of  laws  in  a  union  of  states  are 
not  mere  antinomies,  such  as  may  occur  in  the  municipal 
law  of  every  state  anywhere,  and  which  a  great  jurist 
teaches  may  be  settled  by  purely  scientific  authority,^  The 
resemblance  is  rather  to  the  former  conflicts  between  the 
laws  of  the  state  and  those  of  the  church  which  in  Europe 
shook  society  to  its  foundations. 


No.  2. 

How  the  plans  for  a  new  union,  which  were  presented 
to  the  convention,  were  affected  by  conflicts  of  the  laws  of 
the  states  with  the  confederation  and  federal  treaties. 

Conflicts  of  the  laws  of  the  states  with  the  confederation 
and  federal  treaties  were  among  the  weightiest  causes  pro- 
ducing the  meeting  of  the  Framers'  convention.  Every 
plan  of  union  introduced  to  their  consideration  showed  this 
truth.     The  most  important  of  those  plans  were  the  two 

*  Puclita  :  Cursus  der  Institutionen,  Ed.  6,  I.  44. 


HISTORICAL   COMMENTARY.  311 

moved  respectively  by  Randolph  on  behalf  of  Yirginia  and 
by  Patterson  on  behalf  of  New  Jersey.  Both  these  plans 
will  be  so  frequently  referred  to  in  this  discussion  that  some 
observations  upon  them  are  now  requisite. 

No.  3 

Of  the  two  principal  plans  of  union,  which  were  pre- 
sented in  the  convention. 

Randolph's  plan  was  one  for  Articles  of  Union,  which 
would  supersede  the  Articles  of  Confederation,  and  was  re- 
garded as  being  preferred  by  the  large  states.  Patterson' s 
was  for  new  articles  in  alteration  of,  and  addition  to,  the 
old  confederation,  and  was  regarded  as  preferred  by  the 
small  states. 

The  resolutions  of  Randolph's  plan  were  the  starting 
point  of  the  proceedings  and  debates  of  the  convention. 
They  had  been  carefully  prepared  in  advance,  and  were  in 
fact  the  only  matured  proposal  ready  for  discussion.  They 
were  brought  in  by  Randolph  as  the  representative  of  the 
delegation  from  Yirginia,  among  whom  was  Washington. 
To  a  large  extent,  the  i?>ropositions  of  Randolph's  plan  were 
accepted  and  elaborated,  sometimes  with,  and  sometimes 
without,  adaptation  to  dispositions  derived  from  other 
sources.  In  some  very  important  respects  its  propositions 
were,  however,  not  accepted,  and  the  constitution  is  very 
different  from  what  it  would  have  been,  had  the  whole 
plan  been  followed.  On  the  other  hand,  Patterson's  plan 
was  rejected  as  a  whole.  Subsequently  to  that  rejection, 
however,  part  of  it  was  taken  as  a  basis  for  framing  texts 
of  the  constitution,  which  adjusted  fundamental  relations 
between  the  Union  and  the  states.  The  constitution  is  a 
very  different  instrument  from  what  it  would  have  been, 
had  it  contained  nothing  in  common  with  Patterson's  plan. 


312  HISTORICAL   COMMENi'ARY. 


No.  4. 

Of  the  two  methods  proposed  in  the  convention  for  set 
tling  conflicts  between  the  laws  of  the  Union  and  those  of 
the  states  in  the  new  constitution. 

The  Framers  were  divided  in  their  preferences  for  two 
very  different  ideas  concerning  the  settling  of  conflicts  be- 
tween the  laws  of  the  Union  and  those  of  the  states.  One 
of  these  ideas  was  that  of  vesting  in  the  legislative  Congress 
of  the  Union  a  negative  power  over  state  laws  in  certain 
cases.  This  idea  was  brought  before  the  convention  as  a 
fundamental  part  in  Randolph's  plan.  This  legislative 
negative  power  required  a  federal  legislative  discrimination 
as  to  particular  state  laws. 

The  other  leading  idea  was  one  requiring  judicial  dis- 
crimination in  particular  cases  of  conflict,  in  which  a  gen- 
eral rule  of  legislation,  written  in  the  constitution,  would 
receive  specific  application.  The  origin  of  this  idea  is  to  be 
traced  to  the  previously  mentioned  draft  of  identical  laws 
which  the  federal  letter  of  Congress,  dated  April  10th,  1787, 
recommended  to  the  legislatures  of  the  several  states  as  the 
means  of  settling  conflicts  between  state  laws  and  the  treaty 
of  peace.  This  idea  was  preferred  by  the  Framers  and  was 
expanded  in  two  ways.  It  was  applied  not  merely  to  treaties 
but  also  to  the  new  constitution  and  to  the  laws  made  in 
pursuance  thereof.  It  was  not  only  made  a  rule  addressed 
to  the  judges  in  every  state,  but  was  laid  down  m  paragraph 
2.  YI.  in  such  distinct  legislative  terms  as  to  bind  all  per- 
sons, public  and  private,  capable  of  being  bound  by  legis- 
lative dispositions  in  the  constitution. 


No.  5. 

Of  the  legislative  method  for  settling  conflicts  between 
the  laws  of  the  Union  and  those  of  the  states. 

The  idea  of  the  legislative  negative  was  the  one  first 
brought  to  the  consideration  of   the  convention.     It  was 


HISTORICAL   COMMENTARY.  313 

fully  considered  at  different  times  and  was  temporarily- 
adopted  in  the  committee  of  the  whole.  On  July  17th  it 
was,  however,  finally  rejected,  after  an  important  debate. 
This  was  done  by  a  vote  of  seven  states  to  three.  This  nega- 
tive decision  was  made  merely  as  a  step  towards  further 
positive  action  as  to  a  different  measure,  for  Luther  Martin 
Instanter  moved  the  following  resolution,  which  was 
adopted  unanimously  : 

''Resolved,  That  the  legislative  acts  of  the  United  States, 
"made  by  virtue  and  in  pursuance  of  the  Articles  of  Union, 
''and  all  treaties  made  and  ratified  under  the  authority  of 
''the  United  States,  shall  be  the  supreme  law  of  the  re- 
"spective  states,  as  far  as  those  acts,  or  treaties,  shall  re- 
flate to  the  said  states,  or  their  citizens  and  inhabitants  : — 
'''and  that  the  judiciaries  of  the  several  states  shall  he 
''ho,und  thereby  in  their  decisions — anything  in  the  re- 
''' spective  laws  of  the  individual  states  to  the  contrary ^ 
' '  notwithstanding. ' '  * 


No.  6. 

Of  the  judicial  method  of  settling  conflicts  between  the 
laws  of  the  Union  and  those  of  the  states. 

Martin's  resolution  is  self -evidently  copied  from  the  first  of 
the  two  paragraphs  of  the  7tli  resolution  of  the  plan  of  con- 
federation offered  by  Patterson  on  behalf  of  New  Jersey. 
The  text  of  the  resolution  follows  that  of  Patterson's  said 
paragraph  almost  word  for  word,  except  that  the  former 
speaks  of  the  Articles  of  Union  and  the  latter  speaks  of 
powers  vested  by  the  Articles  of  Confederation.  The  whole 
of  Patterson's  7th  resolution  will  now  be  quoted.  Both  of 
its  paragraphs  are  intimately  connected  with  the  subject  of 
conflicts  between  the  laws  of  the  Union  and  those  of  the 
states,  as  will  be  enlarged  upon  subsequently.  Its  first 
paragraph,  however,  is  here  particularly  in  question.  The 
whole  resolution  contains  two  paragraphs  and  reads  thus  if 

*  Journal,  183  ;  Elliot  V.  322. 
t  Journal,  126. 


314  HISTORICAL   COMMENTARY. 

''  7.  Resolved,  That  all  acts  of  the  United  States  in  Con- 
*'gress  assembled,  made  by  virtue  and  in  pursuknce  of  the 
''iDowers  hereby  vested  in  them,  and  by  the  articles  of  the 
"confederation,  and  all  treaties  made  and  ratified  under 
"the  authority  of  the  United  States,  shall  be  the  supreme 
"  law  of  the  respective  states,  as  far  as  those  acts  or  treaties 
"shall  relate  to  the  said  states,  or  their  citizens  ;  and  that 
"the  judiciaries  of  the  several  states  shall  be  bound  thereby 
"in  their  decisions,  anything  in  the  respective  laws  of  the 
"individual  states  to  the  contrary  notwithstanding. 

"  And  if  any  state,  or  any  body  of  men  in  any  state,  shall 
"oi3poseor  prevent  the  carrying  into  execution  such  acts 
"or  treaties,  the  federal  executive  shall  be  authorized  to 
"call  forth  the  j)owers  of  the  confederated  states,  or  so 
"much  thereof  as  may  be  necessary,  to  enforce  and  compel 
"obedience  to  such  acts,  or  an  observance  of  such  treaties." 

A  comparison  of  the  text  of  Patterson's  first  paragraph 
with  that  of  the  draft  of  identical  laws  proposed  by  the 
federal  Congress  to  the  several  states  on  the  j)revious  April 
13th  can  not  fail  to  suggest  itself  to  the  reader  of  this  Es- 
say. ^  Such  a  comparison  will  show  that  so  far  as  treaties 
are  concerned,  they  resemble  each  other  as  much  as  an  arti- 
cle in  a  confederation  can  well  resemble  a  draft  for  identi- 
cal laws  on  the  statute  books  of  thirteen  different  states. 

The  draft  of  identical  laws  in  every  state  in  which  the 
legislature  might  enact  it,  would  repeal  all  laws  or  parts  of 
laws,  which  conflict-ed  with  the  treaty  of  peace,  and  would 
bind  the  state  courts  of  law  and  equity,  in  all  cases  and 
questions  before  them  that  arose  from  the  treaty,  to  decide 
and  adjudge  according  to  the  treaty,  notwithstanding  or 
nonohstante  anything  in  the  said  laws  or  parts  of  laws  to 
the  contrary  of  the  treaty.  The  draft  was  expressly  de- 
clared, by  the  federal  letter  of  Congress  recommending  it, 
to  be  one  of  a  law  of  general,  not  specific,  repeal.  It  did 
not  make  any  enumeration  of,  or  discrimination  as  to,  par- 
ticular laws  conflicting  with  the  treaty.  Said  Congress  in 
the  letter:     "By  repealing  in  general  terms  all  acts  and 

*See  text  of  the  draft  on  pages  274,  275,  ante. 


HISTOKICAL  com.v[p:ntary.  815 

'*  clauses  repugnant  to  the  treaty,  the  business  will  be  turned 
"over  to  its  proper  department,  viz.,  the  judicial ;  and  the 
*' courts  of  law  will  find  no  difficulty  in  deciding  whether 
''any  particular  act  or  clause  is  or  is  not  contrary  to  the 
''treaty."^ 

There  can  thus  be  no  doubt  that  a  state  court,  under  a 
law  like  the  draft,  could  decide  a  state  law  to  be  wholly  or 
partially  contrariant  to  the  treaty  and  hold  it  therefore  so 
far  void.  This  is  precisely  what  Martin's  resolution  in- 
tended the  state  courts  to  do  as  to  state  laws  contiicting 
with  the  federal  treaties  and  laws  of  the  United  States.  His 
resolution  provided  that  the  legislative  acts  of  the  United 
States  made  in  pursuance  of  the  Articles  of  Union,  and 
treaties  made  under  the  authority  of  the  United  States, 
should  be  the  supreme  law  of  each  state  respectively,  and 
then  by  a  nonohstante  clause  derogated  to  every  law  of  any 
state  contrariant  to  such  legislative  acts  and  treaties,  while 
expressly  binding  the  judges  of  each  state  and  their  deci- 
sions by  those  legislative  acts  and  treaties  as  against  the 
state  laws  so  derogated  to. 

What  the  Congress  of  the  confederation  proposed  to  se- 
cure by  identical  laws  of  the  thirteen  state  legislatures, 
Martin's  resolution  proposed  to  accomplish  by  one  legisla- 
tive provision  in  the  Articles  of  Union,  which  should  be  ju- 
dicially applied  to  particular  cases  by  the  judges  of  each 
state. 

No.  7. 

Of  the  intentions  of  the  Framers  in  rejecting  the  legis- 
lative method  and  adopting  the  judicial  method. 

It  is  therefore  clear  that  in  adopting  Martin's  resolution, 
the  convention  intended  that  the  courts  of  a  state  should 
have  the  competency  and  obligation  to  decide  the  question 
whether  or  not  a  stat^  law  be  contrariant  to  the  constitu- 
tional laws  and  treaties  of  the  Union  and  to  hold  the  same 
derogated  to  or  null  in  so  far  as  so  contrariant. 

*  Journals  of  Congress  XII.  36. 


316  HISTORICAL   COMMENTARY. 

Thus  the  convention,  after  rejecting  the  idea  of  a  legisla- 
tive negative  power  for  settling  conflicts  between  the  laws 
of  the  Union  and  those  of  the  states,  substituted  in  the 
place  thereof  the  idea  of  a  judicial  criticism  for  that  pur- 
pose. To  speak  with  more  precision,  a  positive  legislative 
rule  of  general  import  was  inserted  in  the  new  constitution, 
which  was  to  be  judicially  applied  to  particular  cases  or 
conflicts  as  they  arose.  Thereby,  judicial  was  substituted 
for  legislative  discrimination.  A  further  distinction  must 
also  be  made.  The  discarded  legislative  discrimination  was 
intended  to  be  exclusively  that  of  the  proposed  legislature 
of  the  Union.  The  judicial  discrimination  adopted  was  that 
of  all  judiciaries  capable  of  being  bound  by  legislation  writ- 
ten in  any  new  constitution  or  articles  of  union. 

It  is  true  that  the  state  judges  only  are  named  and  men- 
tioned in  Martin's  resolution  and  the  corresponding  text  of 
the  constitution  (paragraph  2.  YI.),  but  the  clauses  of  both 
are  general  legislative  dispositions  and  as  legislation  bind 
the  courts  and  judges  of  the  Union  as  well  as  those  of  the 
states,  as  will  be  hereinafter  more  fully  set  forth.  As  has  be- 
fore been  pointed  out,  the  anxiety  of  the  Framers  related  to 
the  courts  of  the  states,  not  to  the  courts  of  the  Union.  The 
judicial  courts  of  the  several  states  were  intended  to  be  leg- 
islatively bound  by  the  new  constitution  to  apply  the  laws 
of  the  Union  and  cause  them  to  be  executed  in  certain 
casus  foederis,  notwithstanding  any  acts  of  their  respective 
state  legislatures  to  the  contrary.  For  this  reason,  it  was 
necessary  to  mention  the  state  judges  expressly  and  speci- 
ally. For  this  reason,  as  well  as  others,  it  was  necessary  to 
insert  a  nonohstante  clause  of  derogation  to  state  laws  con- 
flicting with  the  laws  of  the  Union  in  any  casus  foederis. 


No.  8. 

History  of  the  proceedings  of  the  convention  in  framing 
the  text  concerning  the  judicial  method  of  settling  conflicts 
between  the  laws  of  the  Union  and  those  of  the  states. 

Martin's  resolution,  like  all  others  adopted  by  the  con- 


HISTORICAL   COMMENTARY.  317 

vention,  was  referred  to  the  committee  of  five  for  the  pur- 
pose of  their  reporting  a  constitution.  This  was  the  first 
committee  of  five,  of  which  Rutledge  was  chairman.  It  is 
to  be  distinguished  from  the  second  committee  of  ^ve,  of 
which  Johnson  was  chairman.  The  first  committee  reported 
the  Original  draft  of  the  constitution,  which  was  amended 
by  the  convention.  The  amended  draft  was  referred  to  the 
second  committee,  which  reported  the  revised  draft. 

On  August  6th.,  Rutledge's  committee  reported  the  draft 
of  a  constitution,  of  which  the  8th  article  reads  as  follows  : 

"The  acts  of  the  legislature  of  the  United  States  made. in 
"  pursuance  of  this  constitution,  and  all  treaties  made  under 
"the  authority  of  the  United  States,  shall  be  the  supreme 
"law  of  the  several  states,  and  of  their  citizens  and  inhab- 
"  itants ;  and  the  judges  in  the  several  states  shall  be  bound 
"thereby  in  their  decisions  ;  anything  in  the  constitutions 
"or  laws  of  the  several  states  to  the  contrary,  notwithstand- 
' '  ing. ' '     (Journal,  222  ;  Elliot  V.  379. ) 

The  alterations  of  Martin's  resolution  made  in  the  above 
by  the  committee  require  no  comment,  excejDt  (1)  that  the 
substitution  of  the  word,  "Constitution,"  for  the  words, 
"Articles  of  Union,"  resulted  from  the  general  instruction 
of  their  appointment  by  resolution  of  July  23d,  "^  and  (2)  that 
state  constitutions  as  well  as  state  laws  were  written  into 
the  derogation  made  by  the  nonohstante  or  notwithstanding 
clause,  t 

On  August  23d,  Rutledge  moved  to  amend*  Article  8th  of 
the  draft  so  as  to  read  as  below  given.  This  amendment 
consisted  in  striking  out  the  first  fifteen  words  of  the  article 
and  substituting  the  following  :  "This  constitution  and  the 
"laws  of  the  United  States  made  in  pursuance  thereof." 
Rutledge' s  motion  was  unanimously  ado^Dted,  and  article 
8th  then  read  thus :  % 

"  This  constitution  and  the  laws  of  the  United  States  made 
"in  pursuance  thereof,  and  all  treaties  made  under  the 
"authority  of  the  United  States,  shall  be  the  supreme  law 
"  of  the  several  states  and  of  their  citizens  and  inhabitants  ; 

*  Journal,  199,  201. 

t  Cf.  Journal  183  and  222. 

X  Journal,  282,  283  ;  Elliot  V.  467. 


318  HISTORICAL   COMMENTAFwY. 

"and  the  judges  in  the  '^.everal  states  shall  be  bound  thereby 
' '  in  their  decisions  ;  anything  in  the  constitutions  or  laws 
"  of  the  several  states  to  the  contrary,  notwithstanding." 

"  Which  passed  in  the  affirmative."* 

It  was  Rutledge,  the  chairman  of  the  committee  that  re- 
ported the  draft  of  a  constitution,  who  thus  proposed  to  im- 
prove the  committee's  work  by  an  addition  of  the  first  mag- 
nitude. This  addition  expressly  enacted  that  the  constitu- 
tion of  the  United  States  should  become  the  supreme  law 
of  the  several  states  and  of  their  citizens  and  inhabitants ; 
that  the  state  constitutions  and  state  laws  conflicting  there- 
with should  be  derogated  to,  and  that  in  such  conflicts  the 
judges  of  the  several  states  should  be  bound  by  the  former 
and  not  by  the  latter. 

Here  should  be  pointed  out  the  constitutional  relation  of 
Rutledge' s  motion  to  the  then  very  recent  decision  upon  the 
law  of  the  confederation,  which  the  Superior  Court  of  North 
Carolina  had  given  in  the  case  of  Bayard  v.  Singleton.  In 
that  case,  as  previously  mentioned,  that  court  had  decided 
that  the  (confederation  of  the  United  States  was  the  funda- 
mental law  of  the  land  of  North  Carolina  and  was  unrepeal- 
able  by  the  legislature  of  the  state,  so  that  any  law  of  the 
state  conflicting  therewith  would  not  be  judicially  held 
valid.  Thus  the  j)roposition  w^hich  the  Superior  Court  of 
North  Carolina  decided  to  be  the  law  of  the  confederation, 
is  mutatis  mulandis  identical  with  the  legislative  disposi- 
tion which  Rtitledge  moved  should  be  inserted  in  the  new 
constitution  as  the  express  law  thereof. 

On  August  25th,  as  stated  by  the  Journal,  p.  293, 

' '  It  was  moved  and  seconded  to  amend  the  eighth  article, 
''  to  read, 

' '  This  constitution  and  the  laws  of  the  United  States 
' '  Avhich  shall  be  made  in  pursuance  thereof,  and  all  treaties 
'made  or  which  shall  be  'made  under  the  authority  of  the 
*  United  States,  shall  be  the  supreme  law  of  the  several 
' '  states,  and  of  their  citizens  and  inhabitants ;  and  the 
"judges  in  the  several  states  shall  be  bound  thereby  in  their 

*  The  vote  was  unanimous  according  to  Madison,  Elliot  V.  467. 


HJSlORICAL   COMMENTARY.  31P 

''decisions,  any  thing  in  the  constitutions  or  laws  of  the 
''several  states  to  the  contrary,  notwithstanding." 

This  resolution  passed  in  the  affirmative. 

Ma^Mson's  debates  give  the  following  additional  informa- 
tion concerning  the  foregoing  resolution  :* 

"On  motion  of  Mr.  Madison  seconded  by  Mr.  Gou^erneur 
"  Morris  Article  8  [of  the  draft]  was  reconsidered,  and,  after 
"  the  words,  'all  treaties  made'  were  inserted,  nem.  con., 
"the  words,  'or  which  shall  be  made.'  Tliis  insertion  w^as 
"meant  to  obviate  all  doubts  concerning  the  force  of  treaties 
"pre-existing,  by  making  the  words,  'all  treaties  made' 
"  refer  to  them,  as  the  words  inserted  would  refer  to  future 
"treaties." 

These  observations  show  that  Madison  was  as  anxious 
concerning  the  pre-existing  treaty  of  peace,  in  the  then  con- 
vention, as  he  had  been  in  Congress  in  the  previous  Marcn 
and  April.  They  also  show  that  the  modus  operandi  of 
paragraph  2.  VI.  was  intended  to  be  unrestricted  by  any 
rule  of  lex  posterior  derogat  leg i  priori. 

On  September  8th,  the  convention  appointed  its  second 
committee  of  five,  to  which  was  referred  the  amended  draft 
of  the  constitution,  and  which,  on  September  12th,  reported 
the  revised  draft  of  the  constitution.  It  consisted  of  John- 
son, chairman,  Hamilton,  G.  Morris,  Madison  and  King.f 

The  2nd  section  of  the  6th  article  of  the  committee's  re- 
vised draft  reads  thus : 

"This  constitution,  and  the  laws  of  the  United  States 
"which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
"made,  or  which  shall  be  made,  under  the  authority  of  the 
"  United  States,  shall  be  the  supreme  law  of  the  land  ;  and 
"  the  judges  in  every  state  shall  be  bound  thereby,  anything 
"in  the  constitution  or  laws  of  any  state  to  the  contrary 
'  *  notwithstanding. ' '  X 

It  will  be  observed  that  the  committee  made  the  follow^ 
ing  changes  of  language  : 

(1)  for  the  words,  "  the  supreme  law  of  the  several  states 

*  Elliot  V.  478. 

t  Journal,  346,  347. 

X  lb.  366. 


320  HISTORICAL   COMMENTARY. 

' '  and  of  their  citizens  and  inhabitants, ' '  they  substituted  the 
words,  "  the  supreme  law  of  the  land  ;" 

(2)  for  the  words,  "the  judges  of  the  several  states  shall 
''be  bound  thereby  in  their  decisions,"  they  substituted 
the  words,  "the  judges  in  every  state  shall  be  bound 
"thereby;" 

(3)  for  the  words,  ' '  any  thing  in  the  constitutions  or  laws 
"of  the  several  states  to  the  contrary  notwithstanding," 
they  substituted  the  words,  "anything  in  the  constitution 
"or  laws  of  any  state  to  the  contrary  notwithstanding." 

The  words  of  the  revised  draft  are  now  the  words  of  the 
constitution,  no  subsequent  changes  in  the  text  of  paragraph 
2.  VI.  having  been  made.  The  question  therefore  arises 
whether  the  foregoing  modifications  of  language  in  any  way 
modified  the  intentions  of  the  Framers,  either  inadvertently 
or  consciously. 

The  revised  draft,  as  reported  by  the  committee,  was  read 
by  paragraphs  in  the  convention  and  compared  with  the 
amended  first  draft.  In  some  places  it  was  corrected  and 
amended,  and  where  not  amended  and  corrected  was  agreed 
to."^     This  consideration  began  on  September  13th. 

There  is  no  record  of  any  debate,  criticism  or  motion  upon 
the  changes  of  language  introduced  by  the  committee  into 
the  paragraph  which  is  now  paragraph  2.  YI.  of  the  consti- 
tution. 

There  is  no  mention  whatsoever  of  the  subject  in  Madison' s 
debates,  in  the  Journal,  in  the  sheets  of  yeas  and  nays,  or 
in  the  addition  made  to  the  printed  Journal  either  from 
Brearly'  s  notes  or  upon  Madison' s  authority,  f 

It  is  thus  clear  that  without  supposing  some  concealed 
intention  on  the  part  of  the  committee  and  an  actual  negli- 
gence of  all  other  members  of  the  convention,  the  foregoing 
changes  or  emendations  made  by  the  former  could  not  have 
been  consciously  made  contrary  to  the  intentions  of  the 
latter.  That  is  to  say,  in  the  modifications  of  language 
above  mentioned,  the  committee  meant,  and  was  then  under- 

*  Journal,  p.  371,  last  ten  lines,  p.  375  lines  14  to  20. 

t  See  Journal  p.  371  to  end,  and  especially  p.  372,  first  paragraph,  and  p. 
379,  note. 


HISTORICAL   COMMENTARY.  321 

stood  by  the  convention  to  mean,  to  carry  out  and  not  to 
change  the  intentions  of  the  latter.  The  force  of  these  con- 
sidera-tions  will  probably  be  admitted  by  all  as  to  the  second 
and  third  modifications  of  language.  The  writer  will  not, 
however,  assume  that  it  will  be  admitted  by  all  as  to  the 
first  modification.  A  particular  examination  will  therefore 
be  made  concerning  the  substitution  of  the  words,  ''the 
"  supreme  law  of  the  land,"  for  the  words,  ''the  supreme 
"law  of  the  several  states,  and  of  their  citizens  and  inhab- 
"  itants."  'That  the  committee  did  not  in  fact  intend  to  dis- 
obey their  instructions  must  be  conceded,  if  the  legal  mean- 
ing of  the  words,  "  law  of  the  land,"  in  1787 under  the  con- 
federation, as  hereinbefore  explained,  be  correct.  As  has 
been  shown,  those  words  then  signified  the  law  of  each  sev- 
eral state  respectively,  and  not  the  law  of  the  United  States. 

No.  9. 

0/  the  meaning  of  the  words  ^'law  of  the  land'"  hi  the 
constitution  according  to  the  intentions  of  hath  the  com- 
Tnittee  and  the  convention. 

It  is  perfectly  true  that  there  have  been  lawyers  as  well 
as  laymen  who  have  taken  for  granted  that  the  words  "  law 
"  of  the  land"  in  paragraph  2.  VI.,  mean  law  of  the  United 
States  and  not  law  of  each  several  state.  Nothing  short  of 
the  clearest  demonstration  can,  however,  impose  such  a 
meaning  upon  the  text,  for  it  destroys  the  whole  legislative 
point  and  legal  sequence  of  the  remainder  of  the  sentence^ 
which  does  not  say  that  the  judges  of  the  United  States, 
but  that  "the  judges  in  every  state,"  shall  be  bound  by  the 
antecedents  notwithstanding  any  thing  to  the  contrary  ' '  in 
"  the  constitution  or  laws  of  any  state." 

That  the  aforesaid  misunderstanding  of  the  words,  "law 
"  of  the  land,"  is  due  to  the  inadvertence  of  others  and  not 
to  the  inadvertence  of  the  Framers,  will  be  a  task  under- 
taken when  the  text  of  paragraph  2.  VI.  is  critically 
examined. 

It  is,  however,  here  proper  to  insist,  as  part  of  the  his- 
21  0. 


322  HISTORICAL    COMMENTARY. 

tory  of  the  text,  that  neither  the  committee  nor  the  conven- 
tion could  have  had  any  idea,  intention  or  purpose  of  chang- 
ing the  words  of  the  amended  draft  to  any  new  text  signify- 
ing the  supreme  law  of  the  United  States  and  not  the  su- 
preme law  of  the  several  states.  The  reader  knows  how  the 
committee  got  the  words  "  law  of  the  land."  Four  of  its 
five  members  were  delegates  in  the  federal  Congress  which 
had  in  the  spring  previous  applied  them  to  treaties  in  the 
same  way  in  which  the  application  of  them  was  in  August 
made  to  treaties  and  extended  to  the  new  constitution  and 
the  laws  made  in  pursuance  thereof.  Nor  was  the  com- 
mittee the  first  public  body  to  extend  this  application  of 
the  words  "law  of  the  land"  to  other  things  of  the  Union 
besides  treaties.  As  must  be  repeated,  between  April  and 
August  1787  the  Superior  Court  of  North  Carolina  had  de- 
cided that  the  confederation,  like  the  state  constitution,  was 
part  of  the  fundamental  law  of  the  land  of  North  Carolina, 
which  the  state  legislature  could  not  repeal.  The  meaning 
of  those  words,  under  the  new  constitution,  could  only  have 
been  what  it  was  under  the  confederation,  that  is  to  say, 
that  the  law  of  the  land  was  the  law  of  each  several  state 
respectively. 

There  is  no  record  of  the  proceedings  of  the  committee, 
but  there  is  evidence  relating  to  the  ideas  of  one  of  its  mem- 
bers upon  the  subject,  which  throws  light  upon  the  ideas 
of  all.  This  member  is  Hamilton,  one  of  the  authors  of  the 
Federalist.  Number  16  of  that  work  was  written  by  Ham- 
ilton. In  it  he  discusses  the  possibility  of  a  majority  in  a 
state  legislature  usurping  authority  in  violation  of  the  new 
constitution.  In  so  doing,  he  speaks  thus  of  the  judges  of 
the  state  courts : 

"If  the  judges  were  not  embarked  in  a  conspiracy  with 
"the  legislature,  they  would  pronounce  the  resolutions 
"of  such  a  majority  to  be  contrary  to  the  supreme  law 
"of  the  land,  unconstitutional  and  void.  *  *  The 
"magistracy  (^.  e.  the  judges  of  the  state),  being  equally 
' '  the  ministers  of  the  law  of  the  land^from  whatever  source 
"  it  might  emanate^  would  doubtless  he  as  ready  to  guard 
"  the  national  as  the  local  regulations  from  the  inroads  of 


HISTORICAL   COMMENTARY.  323 

""private  licentiousness.''^     (Federalist,  Dawson's  edition, 
pp.  105,  106.) 

It  is  clear  from  the  foregoing  italicised  passage  that  the 
writer  understood  that  the  words,  "law  of  the  land,"  in 
paragraph  2.  YI.  would,  if  the  constitution  became  estab- 
lished, import  that  each  state  had  a  law  of  the  land  of  its 
own  ;  that  part  of  it  emanated  from  the  Union,  and  the  re- 
mainder from  the  state  itself ;  and  that  the  judges  of  the 
state  were  the  ministers  of  all  parts  of  this  law  of  the  land 
of  the  state.  One  part  of  the  said  law  consisted  of  "na- 
"tional  regulations "  and  the  other  of  "local  regulations." 
By  local  regulations  were  meant  the  constitution  and  laws 
of  the  state,  written  and  unwritten,  and  by  national  regu- 
lations, the  constitution  and  constitutional  laws  and  treaties 
of  the  United  States.  The  words  "  the  supreme  law  of  the 
"land"  must  have  been  understood  by  Hamilton  and  con- 
sequently by  the  other  members  of  the  committee  to  mean 
the  supreme  law  of  the  land  of  each  state,  or  of  every  state 
severally,  and  not  the  supreme  law  of  one  single  land  of  the 
United  States  merged  together. 

It  remains  to  speak  of  the  ideas  of  the  convention  upon 
the  subject.  Although  no  remarks  upon  the  words  "law 
"of  the  land"  were  made  by  any  of  the  Framers  of  the 
convention,  C.  C.  Pinckney,  one  of  their  number,  made  im- 
portant observations  thereupon  in  another  place,  which 
have  been  previously  quoted  in  this  Essay.  "^  These  were 
addressed  to  the  legislature  of  South  Carolina,  where  he, 
as  a  member  of  the  late  convention,  was  expressly  and  pub- 
licly giving  his  constituents  an  account  of  his  stewardship. 
By  referring  to  the  extracts  hereinbefore  given,  it  will  be 
seen  that  the  judicial  cases  cited  by  Pinckney  show  clearly 
that  the  treaty  of  peace  was  superadded  to  and  became 
part  of  the  law  of  the  land  of  South  Carolina  (and  conse- 
•quently  in  the  other  states  was  superadded  to  and  made 
part  of  the  law  of  the  land  of  each  respectively).  He  af- 
firmed in  express  terms  that  paragraph  2.  YI.  was  declara- 
tory and  that  the  treaties  were  the  law  of  the  land  as  much 

*  See  pages  289,  290,  ante. 


324  HISTORICAL   COMMENTARY. 

under  the  confederation  as  under  the  constitution.  This  he 
said  after  Bayard  v.  Singleton,  in  a  neighbouring  state,  had 
proved  that  the  confederation  itself  was  part  of  the  law  of 
the  land  of  North  Carolina,  as  must  again  be  repeated. 

Pinckney's  remarks  demonstrate  that  a  competent  and 
prominent  member  of  the  Framers'  convention  had  no  idea 
that  any  departure  from  the  original  intentions  of  the  latter 
body  had  been  made  by  it,  when  it  accepted  the  aforesaid 
change  of  language  made  by  their  committee,  that  is  to  say, 
the  change  from  the  words,  ''the  supreme  law  of  the  sev- 
"eral  states  and  of  their  citizens  and  inhabitants,"  to  the 
words,  "the  supreme  law  of  the  land."  His  remarks  do 
more.  They  are  so  expressed  that  there  can  be  no  doubt 
that  C.  C.  Pinckney's  opinion  was  not  a  mere  personal  opin- 
ion, but  a  representative  one.  They  thus  furnish  positive 
evidence  as  to  the  character  of  the  opinions  of  the  Framers 
in  general  upon  the  committee's  action. 

The  foregoing  examination,  it  is  maintained,  shows  that 
the  committee  of  five  on  the  revised  draft  no  more  departed 
from  the  previously  expressed  intentions  of  the  Framers  in 
the  first,  than  in  the  other  two  modifications  of  language, 
introduced  by  them  into  the  text  of  what  is  now  paragraph 
2.  YI.  of  the  constitution. 


No.  10. 

Conclusion  as  to  the  correctness  of  the  first  proposition 
concerning  the  Framers''  intentions  laid  down  in  chap- 
ter SI,  No.  1. 

It  is  also  maintained  that  the  foregoing  history  of  the 
framing  of  tbe  said  constitutional  text  establishes  the  truth 
of  the  proposition  that  thfe  Framers  actually  intended  that 
the  courts  of  the  several  states  should  become  competent 
and  obliged  in  all  litigations  before  them,  to  decide  upon 
the  questioned  (federal)  constitutionality  of  state  laws  and 
state  constitutions,  and  to  hold  the  same  to  be  void  in  so 
far  as  contrary  to  the  constitution  and  constitutional  laws 
and  treaties  of  the  United  States  :  that  is  to  say,  that  it  is 
correct  to  affirm  proposition  1st  on  page  294. 


HISTORICAL   COMMENTABY.  325 


No.  11. 

Of  the  connection  between  the  first  and  second  proposi- 
tions concerning  tJie  Framers'  intentions  asserted  in  chap- 
ter SI,  No.  1. 

It  has  been  previously  shown  that  the  Framers  intended 
that  the  right  to  decide  upon  the  questioned  constitution- 
ality of  U.  S.  laws  and  to  hold  them  to  be  void,  when  un- 
constitutional, should  be  a  right  belonging  to  the  courts  of 
the  several  states  in  all  litigations  before  them.  It  is  here 
proper  to  add  that  such  a  right  of  the  state  judges  is  neces- 
sarily, and  must  have  been  intended  to  be,  a  limitation 
upon  the  obligation  imposed  upon  them  in  cases  of  con- 
flicts between  the  constitutions  or  laws  of  their  states  and 
the  laws  of  the  United  States.  The  skillful  incorporation 
of  such  a  limitation  in  the  express  terms  of  the  obligation 
liberates  them  from  the  rule  of  paragraph  2.  VI.,  whenever 
U.  S.  laws  are  not  made  in  pursuance  of  the  U.  S.  constitu- 
tion.    Such  laws  are  outside  of  the  limits  of  the  rule. 


CHAPTER  XXXIY. 


Of  the  Framers*  intentions  as  to  the  competency  of 
the  U.  S*  Supreme  Court  to  decide  upon  the  ques- 
tioned (federal)  constitutionality  of  state  legfislation 
and  to  hold  the  same  void  in  so  far  as  so  unconsti- 
tutional. 


No.  1.  Of  the  inferior  courts  of  the  United  States, 
No.  2.   That  paragraph  2.  YI.  was  intended  to  he  a  leg- 
islative rule  of  judicial  decision  for  all  courts,  both  of  the 
United  States  and  of  the  several  states. 


326  HISTORICAL   COMMEN'J'ARY. 

ISTo.  3.  Of  the  proposed  and  rejected  legislative  power  of 
negativing  state  legislation^  as  showing  the  Framers''  in- 
tentions concerning  the  relation  of  federal  authority  to 
conflicts  between  the  laws  of  the  Union  and  those  of  the 
states. 

No.  4.  Of  the  origin  and  purposes  of  the  legislative 
negative  method. 

No.  5.  Of  the  relation  of  paragraph  2.  VI.  to  the  lye- 
ginning  of  section  '2.   III. 

No.  6.  The  history  of  the  legislative  negative  in  the  con- 
vention examined.,  in  order  to  ascertain  the  intentions  of 
the  Framers  concerning  judicial  competency  in  cases  of 
conjlict  between  the  laws  of  the  Union  and  those  of  the 
state. 


The  3d  proposition  laid  down  in  Chapter  31 ,  No.  3,  will 
now  be  considered,  viz.^  that  the  Framers  of  the  constitution 
actually  intended  that  the  U.  S.  Supreme  Court  should  be 
competent  in  all  litigations  before  it  to  decide  upon  the 
questioned  (federal)  constitutionality  of  state  laws  and  state 
constitutions  and  to  hold  the  same  to  be  void  in  so  far  as 
contrary  to  the  U.  S.  constitution. 

No.  1. 

Of  the  inferior  courts  of  the  United  States. 

Although  the  convention  did  not  frame  any  constitutional 
clause  ordaining  any  inferior  courts  of  the  United  States,  it 
did  frame  texts  giving  Congress  power  to  constitute  such 
inferior  tribunals  in  the  future.  Whether  such  courts, 
when  so  constituted,  were  intended  to  have  the  same  com- 
petency, is  therefore  here  a  proper  question  to  ask.  To 
that  question  an  affirmative  answer  is  given,  for,  it  is  main- 
tained that  they  actually  intended  that  all  courts,  past 
present  and  future,  both  state  and  federal,  should  be  so 
competent. 


HISTORICAL   COMMENTARY.  327 


No.  2. 


That  paragraph  2.  VI.  was  intended  to  he  a  legislative 
rule  of  judicial  decision  for  all  courts^  both  of  the  United 
States  and  of  the  several  states. 

If  what  lias  been  previously  said  be  correct,  it  has  been 
made  clear  that  the  Framers  intended  that  the  courts  of  the 
several  states  should  be  both  competent  and  obliged  to  do 
what,  it  is  now  furthermore  asserted,  they  intended  all 
courts  of  the  United  States  to  be  competent  to  do.  This 
was  done  by  paragraph  2.  YI.  That  paragraph  was  four 
times  considered  in  the  convention  without  one  negative 
vote  being  given  against  it.  It  was  regarded  as,  and  in- 
tended to  be,  a  legislative  disposition.  As  will  be  herein- 
after fully  commented  upon,  the  final  clause  is  a  clausula 
nonohstante,  that  is  to  say,  a  legislative  clause  of  the  most 
express  and  technical  nature.  While  this  clause  dero- 
gates to  old  and  other  laws  of  a  certain  sort,  clauses  pre- 
ceding it  enact  new  law  of  a  different  sort.  Paragraph  2. 
VI.  is  therefore  a  legislative  rule  and  limitation,  which  is 
particularly  and  especially  addressed  to  "the  judges  in 
"  every  state."  It  is  thus  a  legislative  rule  of  decision  for 
those  judges,  but  being  a  legislative  rule,  it  is  one  for  all 
other  courts  capable  of  applying  it  and  all  other  persons 
capable  of  obeying  it  As  a  legislative  rule  of  judicial  de- 
cision, it  can  be  applied  by  the  U.  S.  judges.  The  fact  that 
the  Framers  regarded  the  rule  in  paragraph  2.  YI^s  legis- 
lation or  written  law  is  alone  sufficient  to  prirce^at  they 
actually  intended  that  the  rule  of  decision  therein  contatned 
should  bind  the  supreme  and  all  future  courts  of  the  United 
States  as  well  as  all  the  courts  of  all  other  states. 

Strictly  speaking,  it  is  therefore  unnecessary  to  proceed  fur- 
ther in  investigating  the  intentions  of  the  Framers  as  to  pro- 
position 3d.  It  would,  however, be  doing  great  injustice  to  the 
matter  to  stop  here.     It  is,  indeed,  part  of  a  greater  matter. 


328  HISTORICAL   COMMENTARY. 

The  competency  of  any  court  to  decide  between  conflicting 
federal  and  state  laws  is  but  a  part  of  the  constitutional  sys- 
tem for  securing  the  execution  of  the  laws  of  the  Union, 
either  by  federal  or  state  agency,  in  the  difl'erent  casus  foe- 
deris. Such  securing  of  execution  was,  par  excellence,  the 
particular  task  of  the  Framers,  for  its  absence  was  believed 
by  them  to  be  the  greatest  of  all  the  defects  of  the  confed- 
eration. At  an  early  date  they  undertook  the  consideration 
of  that  part  of  this  task  which  related  to  conflicts  between 
the  laws  of  the  Union  and  those  of  the  states.  At  an  early 
date,  as  will  be  hereinafter  more  particularly  mentioned, 
they  resolved  not  to  write  in  the  new  constitution  any 
clauses  of  federal  execution  against  a  state  by  military  pro- 
cess for  violation  of  federal  right.  At  an  early  date,  how- 
ever, they  adopted  a  certain  plan  for  settling  conflicts  be- 
tween the  laws  of  the  Union  and  those  of  the  states  which 
they  afterwards  discarded.  This  temporary  preference  was 
the  legislative  negative  power  previously  mentioned  and  for 
which  the  present  system  of  paragraph  2.  VI.  was  substi- 
tuted. 


No.  3. 

Of  the  proposed  and  rejected  federal  legislative  power  of 
negativing  state  legislation,  as  showing  the  Framers^  in- 
tentions concerning  the  relation  of  federal  authority  to 
conflicts  between  the  laws  of  the  Union  and  those  of  the 
states. 

The  history  of  the  legislative  negative  is  of  much  import- 
ance in  connection  with  the  history  of  the  other  measure 
which  was  a  substitute  for  it.  A  comparative  view  of  the 
history  of  both  measures  is  necessary  for  ascertaining  the 
full  intentions  of  the  Framers.  It  will  show  that,  when 
they  changed  their  minds  as  to  one  measure,  and  preferred 
another,  they  did  not  change  their  minds  as  to  the  object, 
which  both  measures  were  intended  to  secure.  The  legisla- 
tive negative,  that  is  to  say,  a  congressional  power  of  nega- 
tiving all  state  laws  conflicting  with  the  laws  of  the  Union, 


HISTORICAL   COMMENTARY.  329 

was  self -evidently  intended  to  secure  the  execution  of  the 
laws  of  the  Union  in  all  casus  foederis  in  spite  of  the  op- 
position of  any  state  legislature  to  the  contrary. 


No.  4 

0/  the  origin  and  purposes  of  the  legislative  negatir^e 
method. 

It  was  avowedly  an  imitation  of  the  old  colonial  preroga- 
tive of  the  English  crown  by  which  the  king  had  power  to 
negative  all  colonial  laws  conflicting  vdth  the  laws  or  policy 
of  the  metropolitan  country.  From  a  constitutional  point 
of  view,  the  proposed  negative  power  was  as  much  the 
means  of  securing  the  execution  of  the  laws  of  the  Union 
as  the  king' s  prerogative  was  a  means  of  securing  the  exe- 
cution of  the  laws  of  the  British  empire.  Such  a  return  to 
the  old  polity  was  ardently  advocated  by  certain  Framers, 
especially  Madison  and  Charles  Pinckney.  It  had  that  par- 
ticular hold  on  its  advocates,  which  an  apparently  feasi- 
ble plan  of  political  restoration  often  has  on  the  best  minds. 
But  it  was  in  the  end  found  to  be  practically  incapable  of 
limitation  and  definition  in  a  written  constitution.  It  was 
held  to  be  certain  "to  disgust  the  states,"  and  well  it  might. 
In  its  place  the  plan  of  a  judicial  discrimination  under  a 
general  clausula  nonohstante  was  substituted.  In  accord- 
ance therewith,  paragraph  2.  VI.  was  elaborated  by  degrees 
and  framed  as  now  written  in  the  constitution 


No.  5. 

Of  the  relation  of  paragraph  2.  VI.  to  the  heginnirig  of 
section  2.  III. 

Now,  it  is  true,  as  will  be  subsequently  pointed  out,  that 
paragraph  2.  VI.  gravely  affected  the  framing  of  a  third  or 
judicial  article.  The  cases  in  law  and  equity  in  paragraph 
1,  section  2,  article  III,  were  intended  to  be  adapted  to  the 
law  of  paragraph  2.  VI.     All  the  casus  named  in  one  text 


330  HISTORICAL   COMMENTARY. 

were  intended  to  be  aptati  to  the  jus  of  the  other  text. 
More  briefly,  those  two  portions  of  the  constitution  were 
intended  to  be  twin  texts.  This  important  fact  should  hot, 
however,  mislead  students  of  the  constitution  into  thinking 
that  the  system  of  paragraph  2.  VI.  is  to  be  exclusively  re- 
garded as  part  only  of  a  mere  judicial  plan  and  as  merely  a 
jure  dleundo  institution.  It  is  something  more  than  that. 
It  is  not  merely  a  judicial  institution.  It  is  also  one  for  se- 
curing the  execution  of  the  laws  of  the  Union  in  the  differ- 
ent casus  foederis.  In  this  respect,  it  has  the  same  object 
as  the  legislative  negative  had.  This,  it  is  contended,  is 
shown  by  the  historical  evidence  relating  to  the  legislative 
negative,  its  nature,  its  provisional  adoption  and  final 
rejection. 

Before  rehearsing  that  evidence,  it  is  proper  to  give  spe- 
cific evidence  showing  that  the  Framers  intended  paragraph 
2.  YI.  and  the  begftining  of  section  2.  III.  to  be  twin  texts. 

Article  8  of  the  draft  corresponds  to  paragraph  2.  YI.  of 
the  constitution.  On  August  25th,  Madison  made  a  motion 
that  after  the  words,  "all  treaties  made,"  in  said  article  8, 
the  further  words,  "or  which  shall  be  made,"  should  be  in- 
serted.    This  motion  passed  nem.  con.'^ 

The  beginning  of  section  3.  of  draft  article  11.  corresponds 
to  the  beginning  of  section  2.  III.  of  the  constitution.  On 
August  27th,  on  motion  of  Rutledge,  certain  words  were 
struck  out  of  the  said  draft  text,  and  "after  the  words 
"United  States  were  inserted,  nem.  con.^  the  words,  'and 
"  '  treaties  made  or  which  shall  be  made  under  their  author- 
"  '  ity,'  conformably  to  a  preceding  amendment  in  another 
''place.''-\ 

,  There  is  thus  clear  and  direct  evidence  that  the  treaty 
clauses  in  paragraph  2.  YI.  and  the  beginning  of  section  2. 
III.  respectively  were  avowedly  made  twin  texts  relating 
to  each  other.  If  this  be  true  of  those  clauses,  it  must  be 
true  of  the  other  portion  of  the  texts  as  well,  as  the  mere 
collation  thereof  suffices  to  show.  That  is  to  say,  that  the 
beginning  of  section  2.  III. : 

*  Elliot  V.  478. 
t  lb.  483. 


HISTORICAL   COMMENTARY.  331 

''The  judicial  power  shall  extend  to  all  cases,  in  law  and 
"equity,  arising  under  this  constitution,  the  laws  of  the 
"  United  States,  and  treaties  made,  or  which  shall  be  made, 
"under  their  authority  " — and  paragraph  2.  VI. : 

' '  This  constitution,  and  the  laws  of  the  United  States  which 
"  shall  be  made  in  pursuance  thereof  ;  and  all  treaties  made, 
"or  which  shall  be  made,  under  the  authority  of  the  United 
"  States,  shall,"  etc., — are  twin  texts  and  relate  to  each 
other  as  such. 


No.  6. 

The  history  of  the  legislative  negative  in  the  convention 
examined^  in  order  to  ascertain  the   intentions    of  the 
Framers  concerning  judicial  competency  in  cases  of  con- 
flict between  the  laws  of  the  Union  and  those  of  the  states. 

The  evidence  relating  to  the  intentions  of  the  Framers, 
which  is  derived  from  the  history  of  the  finally  rejected 
legislative  negative,  will  now  be  rehearsed. 

In  a  paper  written  late  in  his  life,  Madison  was  of  the 
opinion  that  the  earliest  written  sketch  of  a  "  constitutional 
"government  of  the  Union,"  which  resembled  the  present 
one,  was,  perhaps,  that  given  in  his  letters  to  Jefferson, 
Randolph  and  Washington,  dated  in  1787  on  March  19th, 
AjMl  8th,  and  16th,  respectively.  In  connection  with  this 
subject  he  observes  that  "the  feature  in  these  letters  which 
"  rested  in  the  general  authority,  a  negative  on  the  laws  of 
"the  states,  was  suggested  by  the  negative  in  the  head  of 
"the  British  empire,  which  prevented  collisions  between 
"the  parts  and  the  whole,  and  between  the  parts  them- 
"  selves.  It  was  supposed  that  the  substitute  of  an  elective 
"and  responsible  authority,  for  an  hereditary  one,  would 
"avoid  the  appearance  even  of  a  departure  from  republican- 
"  ism.  But  although  the  subject  was  so  viewed  in  the  con- 
"  vention,  and  the  votes  on  it  were  more  than  once  equally 
"divided,  it  was  finally  and  justly  abandoned,  as,  apart 
"from  other  objections,  it  was  not  practicable  among  so 
"many  states,  increasing  in  number,  and  enacting,  each  of 


333  HISTORICAL   COMMENTARY. 

^'them,  so  many  laws.  Instead  of  the  proposed  negative^ 
'-^tlie  objects  of  it  were  left  as  finally  provided  for  in  the 
''^  constitution.^^ 

It  will  here  be  observed  that  Madison  thus  held  that  ''the 
"objects"  of  the  negative,  viz.^  the  preventing  of  collisions 
between  the  Union  and  the  states,  were  not  abandoned  with 
that  measure,  but  ' '  were  left  as  finally  provided  for  in  the 
"constitution."  He  says  nothing  about  the  constitutional 
provisions  for  such  objects  being  incidental  or  merely  inci- 
dental to  the  judiciary  of  the  Union  as  a  federal  institution. 

In  the  convention,  on  May  29th,  Randolph  presented  his 
plan  for  the  Articles  of  Union  on  behalf  of  Virginia.  Its 
6th  resolution  contained  a  clause  providing  that  the  national 
legislature  "ought  to  be  empowered  to  negative  all  laws 
"passed  by  the  legislatures  of  the  several  states  contra ven- 
"ing,  in  the  opinion  of  the  national  legislature,  the  Articles 
"of  Union." "^  On  May  31st,  this  clause  was  agreed  to  and 
enlarged  so  as  to  include  a  negative  of  state  laws  contraven- 
ing ' '  treaties  subsisting  under  the  authority  of  the  Union. ' '  f 
On  June  8th,  the  amended  clause  was  reconsidered,  and 
Charles  Pinckney  moved  to  alter  it  so  as  to  give  the  national 
legislature  power  "to  negative  all  the  laws  which  to  them 
"  shall  appear  improper."  :|:  This  motion  was  lost  by  a  vote 
of  7  to  3  with  one  state  divided,  after  a  prolonged  debate. 
The  matter  thus  was  formally  left  as  it  stood  before,  that  is 
to  say,  a  limited  negative  was  supported  by  the  committee 
of  the  whole,  while  an  unlimited  negative  was  rejected. 

The  inherent  difiiculties  of  the  negative  had,  however, 
shown  themselves.  Randolph's  resolutions,  as  altered  and 
added  to,  were  on  June  19th  ordered  by  the  committee  of 
the  whole  to  be  reported  to  the  house,  which  was  accord- 
ingly done.  Thus  at  that  date  the  Framers  were  formally, 
though  provisionally,  committed  to  a  limited  negative.  But 
the  difficulty  of  "  drawing  the  line  of  jurisprudence"  limit- 
ing such  a  power  had  been  discovered  and  had  sapped  the 
powerful  support  which  it  originally  had.     In  the  meantime 

*  Elliott  V.  127. 

t  lb.  139. 

X  Journal  p.  109. 


HISTORICAL   COMMENTARY.  333 

the  plan  of  confederation,  offered  by  Patterson  on  behalf  of 
New  Jersey,  had  been  considered.  Although  rejected  as  a 
whole,  part  of  that  plan  was  subsequently  the  bridge  by 
which  the  convention  escaped  from  the  legislative  negative 
in  every  shape  and  reached  what  is  now  paragraph  2.  YI. 

On  July  17th,  the  legislative  negative  was  again  consid- 
ered, and,  although  it  was  not  the  last  time  at  which  its  ad- 
vocates secured  a  hearing,  it  was  then  finally  rejected.  By 
a  vote  of  7  states  to  3,  the  convention  rejected  the  clause  of 
the  6th  resolution  of  the  committee  of  the  whole  empower- 
ing the  national  legislature  "  to  negative  all  laws  passed  by 
''the  several  states  contravening,  in  the  opinion  of  the 
*' national  legislature,  the  Articles  of  Union,  or  any  treaties 
''subsisting  under  the  authority  of  the  Union." 

The  debate  was  as  important  as  it  was  decisive. 

G.  Morris,  Sherman  and  L.  Martin  opposed  the  negative, 
Madison  and  Charles  Pinckney  advocated  it. 

Madison  observed  that  "a  power  of  negativing  the  im- 
"  proper  laws  of  the  states  is  at  once  the  most  mild  and  cer- 
' '  tain  means  of  preserving  the  harmony  of  the  system.  Its 
"utility  is  sufficiently  displayed  in  the  British  system. 
"Nothing  could  maintain  the  harmony  and  subordination 
"of  the  various  parts  of  the  empire,  but  the  prerogative  by 
"  which  the  crown  stifles  in  its  birth  every  act  of  every  part 
"tending  to  discord  and  encroachment." 

G.  Morris  said,  that  he  "was  more  and  more  opposed  to 
"a  negative.  The  proposal  of  it  would  disgust  all  the 
"  states.  A  law  that  ought  to  be  negatived  will  be  set  aside 
"in  the  judiciary  department,  and,  if  that  security  should 
"fail,  may  be  repealed  by  a  national  law." 

Sherman  said  that  "  such  a  power  involves  a  wrong  prin- 
"  ciple,  to  wit,  that  a  law  of  a  state  contrary  to  the  Articles 
"of  Union,  would,  if  not  negatived,  be  valid  and  opera- 
"tive."* 

In  finally  rejecting  the  legislative  negative,  and  overrul- 
ing its  previous  action,   the  convention  took  a  step  back- 
wards, only  to  make  a  leap  forwards.     Luther  Martin's  mo- 
tion in  favour  of  the  plan  of  what  is  now  paragraph  2.  VI., 
*  Elliot  V.  331,  322. 


334  HISTORICAL   COMMENTARY. 

was,  as  before  stated,  immediately  offered  and  adopted 
without  opposition,  and  apparently  without  debate.  Such 
action  is  incomi)rehensible,  if  the  Framers  intended  to 
abandon  what  had  been  their  avowed  object,  as  well  as 
abandon  the  measure  by  which  they  had  intended  pre- 
viously to  secure  that  object.  In  first  adopting  and  then 
discarding  a  legislative  negative  to  be  applied  with  legisla- 
tive discrimination,  and  substituting  therofor  a  judicial 
discrimination  applying  a  general  clause  of  derogation,  they 
intended  only  to  change  the  means  of  accomplishing  their 
object,  and  not  to  abandon  that  object  itself. 

The  last  observation  does  not,  however,  depend  merely 
upon  inference,  for,  subsequently  the  legislative  negative 
secured  a  re-hearing  in  the  proceedings  on  the  draft  consti- 
tution. This  was  on  August  23rd,  and  the  debate  throws 
important  light  upon  the  point  in  question.  On  that  day, 
shortly  after  Rutledge  had  carried  his  amendment  insert- 
ing the  words  "this  constitution"  in  article  8  of  the  draft 
(now  paragraph  2.  VI.),  Charles  Pinckney  made  a  last  ef- 
fort in  favour  of  the  legislative  negative.  His  motion  to 
adopt  it  coupled  it  with  a  proviso  requiring  a  two-thirds 
vote  in  both  houses.  This  proposition  was  not  intended  to 
be  a  substitute  for  the  plan  of  paragraph  2.  VI.,  but  to  be 
an  additional  method  of  settling  conflicts  between  the  laws 
of  the  Union  and  those  of  the  states.^  Five  speakers  avowed 
themselves  favourable  to  Pinckney' s  idea  in  some  form, 
while  five  opposed  it,  and  one  doubted,  f 

Williamson  "thought  it  unnecessary,  and  having  already 
"been  decided,  a  revival  was  a  waste  of  time." 

Wilson  advocated  the  measure,  saying  that ' '  the  firmness 
"of  judges  is  not,  of  itself,  sufficient."  This  remark  of  Wil- 
son, though  brief,  is  decisive  upon  the  point  in  considera- 
tion.    The  plan  adopted  and  the  plan  rejected  had  both  the 

*  The  great  point  as  to  the  judiciary  of  the  constitution  is  that  state  execu- 
tion was  imposed  on  state  judiciaries  and  them  only  by  name,  and  that  fed- 
eral execution  was  carried  out  by  the  federal  judiciary  par  excellence.  That  is 
to  say,  federal  execution  is  normally  judicially  regulated  and  caused  to  be 
executed.     Federal  execution  sub  judicibus  per  officiales  executivos. 

t  Elliot  V.  468. 


HISTORICAL   COMMENTARY.  335 

same  object.  Wilson  does  not  speak  of  state  judges,  but 
of  judges  in  general. 

Madison  favoured  Pinckney's' measure  and  moved  to 
commit  it,  which  motion  was  negatived  by  six  states  to  five, 
when  Pinckney  withdrew  his  proposition. 

Thus  ended  all  chance  of  reviving  the  rejected  plan  of  a 
legislative  negative  in  the  nature  of  the  old  royal  preroga- 
tive. The  place  which  such  a  plan  had  once  temporarily 
held  in  the  favour  of  the  Framers  was  permanently  occu- 
pied by  another,  mz.^  the  legislative  rule  of  judicial  decision, 
which  paragraph  2.  VI.  now  prescribes  for  settling  conflicts 
between  the  constitution  or  other  laws  of  the  Union  and  any 
contradictory  constitutions  or  laws  of  the  states. 

From  the  foregoing  review,  it  is  contended  to  be  a  true 
conclusion  that  the  legislative  rule  of  judicial  decision  pre- 
scribed by  paragraph  2.  VI.  was  intended  by  the  convention 
to  be  a  general  disposition  for  settling  the  conflicts  afore- 
said and  was  not  limited  to  the  courts  of  the  several  states, 
but  comprehended  also  the  Supreme  Court  of  the  constitu- 
tion and  such  future  courts  of  the  United  States  as  Con- 
gress might  constitute.  If  this  be  true,  it  is  correct  to  af- 
firm proposition  3d  on  page  294,  mz.^  that  the  Framers 
of  the  constitution  actually  intended  that  the  U.  S.  Supreme 
Court  should  be  competent  in  all  litigations  before  it  to  de- 
cide upon  this  questioned  (federal)  constitutionality  of 
state  laws  and  state  constitutions  and  to  hold  the  same  to 
be  void  in  so  far  as  contrary  to  constitution  and  constitu- 
tional laws  and  treaties  of  the  United  States 


336  HISTORICAL   COMMENTARY. 


CHAPTER  XXXY. 


Of  tlie  Framers'  intentions  concerning:  the  compe- 
tency of  tlie  U.  S.  Supreme  Court  to  decide  upon  tlie 
questioned  constitutionality  of  acts  of  Cong^ress. 
and  to  liold  tlie  same  void  ^wlien  unconstitutional. 


The  next  matter  for  consideration  is  proposition  4th,  on 
page  294,  concerning  the  intentions  of  the  Framers,  viz.^ 
that  the  U.  S.  Supreme  Court  should  be  competent  in  all 
litigations  before  it,  to  decide  upon  the  questioned  consti- 
tutionality of  U.  S.  laws,  and  to  hold  the  same  to  be  void 
when  unconstitutional. 

The  evidence  of  the  truth  of  this  will  be  found  in  the 
proceedings  of  the  convention  in  framing  the  text  of  the 
clause,'  which  is  the  beginning  of  section  2.  III.,  which 
reads : 

''  The  judicial  power  shall  extend  to  all  cases  in  law  and 
"equity  arising  under  this  constitution,  the  laws  of  the 
"United  States  and  treaties  made,  or  which  shall  be  made, 
"  under  their  authority." 

The  history  of  the  formation  of  this  text  may  be  begun 
by  quoting  Randolph's  and  Madison's  motion,  passed  on 
June  13th,  which  reads  : 

"  That  the  jurisdiction  of  the  national  judiciary  shall  ex- 
"tend  to  cases,  which  respect  the  collection  of  national 
"revenue,  impeachments  of  any  national  officers,  and  ques- 
"tions  which  involve  national  peace  and  harmony."  * 

This  resolution  is  repeated  verbatim  in  the  series  of  resolu- 
tions reported,  June  19th,  by  the  committee  of  the  whole, 
being  resolution  the  13th. f 

*  Journal,  131. 
t  lb.  137, 


HISTORICAL   COMMENTARY.  337 

On  July  18tli,  the  clause  of  "impeachments  of  national 
*' officers"  was  stricken  out  audit  was  then  unanimously 
resolved  to  alter  the  said  13th  resolution,  so  as  to  read : 
^'  That  the  jurisdiction  of  the  national  judiciary  shall  extend 
U  to  cases  arising  under  laws  passed  by  the  general  legisla- 
*'ture,  and  to  such  other  questions  as  involve  the  national 
"peace  and  harmony."* 

This  resolution  is  reported  verhatim  in  the  series  of  resolu- 
tions, stated  by  the  Journal  to  be  referred  to  the  first  com- 
mittee of  five  with  instructions  -to  report  a  constitution,  be- 
ing resolution  the  16th.t 

On  August  6th,  that  committee  reported  the  draft  of  a 
constitution.     The  beginning  of  the  3d  section  of  its  11th. 
^i^iicle  reads : 

"The  jurisdiction  of  the  Supreme  Court  shall  extend  to 
"  all  cases  arising  under  laws  passed  bv  the  legislature  of 
"the  United  States." 

On  August  27th,  when  the  lltb  article  of  the  draft  con- 
stitution was  under  consideration,  and  the  above  text  was 
reached,  the  following  proceedings  took  place  as  reported 
by  Madison :% 

"Dr.  Johnson  moved  to  insert  the  words  ''this  const itu- 
*''' Hion  and  tlie^  before  the  word  'laws.'  Mr.  Madison 
"  doubted  whether  this  was  not  going  too  far,  to  extend  the 
"jurisdiction  of  the  court  genei'ally  to  eases  arising  under 
''the  constitution^  and  whether  it  ought  not  lobe  limited 
* '  to  cases  of  a  judiciary  nature.  The  right  of  expounding 
'^the  constitution^  in  cases  not  of  this  nature,  ought  not 
''to  he  given  to  that  department.  The  motion  of  Dr.  John- 
"son  was  agreed  to,  nem.  con.y  it  being  generally  supposed 
''that  the  jurisdiction  given  was  constructively  limited  to 
"cases  of  a  judiciary  nature. 

"On  motion  of  Mr.  Eutlsdge  the  words  ' passed  by  the^ 
"'legislature,'  were   stricken  out;   and  after  the  words, 
"  '  United  States,'  were  inserted,  nem.  con.,  the  words,  'an 

*  Journal,  188,  189.  "        ~~ 

t  lb.  212,  207, 199.    On  July  JiQth,  the  executive  made  removable  by  impeach- 
ment.    5  Elliot,  343. 
i  Elliot  V.  483. 

22  0. 


338  HISTORICAL   COMMENTARY. 

'^  'treaties  made  or  which  shall  be  made  under  their  author- 
''  'ity,'  conformably  to  a  preceding  amendment  in  another 
''place." 

The  beginning  of  the  section  thus  then  rea'd  :  ' '  TJiejuris- 
\' diction  of  the  Supreme  Court  ^h^W  extend  to  all  cases 
\  arising  under  this  constitution  and  the  la^s  of  the  United 
States  and  treaties  made  or  which  shall  be  made  under 
heir  authority."  In  spite  of  the  true  construction  of  the 
a/nended  text  being  generally  supposed  in  the  convention 
mean  that  the  jurisdiction  of  the  Supreme  Court,  in 
ases  arising  under  the  constitution,  was  extended  to  cases 
of  a  judiciary  nature  and  not  extended  to  all  cases  generally 
whether  judicial  or  extrajudicial,  Madison  was  not  satisfied. 
Not  long  after,  while  this  section  was  still  under  considera- 
tion, he  says  ;  "Mr.  Madison  and  Mr.  Gouverneur  Morris 
"moved  to  strikeout  the  beginning  of  the  third  section, 
"'The  jurisdiction  of  the  Supreme  Court,'  and  to  insert 
"  the  words,  '  the  judicial  power'  which  was  agreed  to  nem. 
''con.'"'  The  section  thus  then  read  :  ' '  The  judicial  power 
"  shall  extend  to  all  cases  arising  under,"  etc. 

The  constitution  itself  now  reads:  "The  judicial  power 
"shall  extend  to  all  cases  in  law  and  equity  arising 
"  under,"  etc. 

"The  judicial  power,"  intended  by  the  Framers  when 
making  the  said  amendment  was  the  judicial  power  of  the 
United  States,  both  in  law  and  equity,  as  mentioned  in  sec- 
tion 3,   of  article  11.   of  the  draft,   which,  as  previously 
amended,  tlius  read  at  that  particular  moment :   "  The  judi- 
"cial  power  of  the  United  States,  both  in  law  and  equity, 
'  shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
'  courts  as  shall,  when  necessary,  from  time  to  time,  be 
'  constituted  by  the  legislature  of  the  United  States." 

It  is  thus  clear  the  Framers  expressly  intended  that  the 
judicial  power  of  the  United  States  should  not  extend  to 
constitutional  cases  of  an  extrajudicial  nature  arising  under 
the  new  constitution.  It  is  equally  clear,  however,  that 
they  expressly  intended  that  the  said  judicial  power  should 
positively  extend  to  constitutional  cases  of  a  judiciary  or 
judicial  nature  arising  under  the  constitution.     There  was 


HISTORICAL   COMMENTARY.  339 

no  doubt  or  anxiety  among  the  Framers  upon  this  head. 
Their  only  anxiety  was  to  prevent  the  jurisdiction  of  th^ 
Supreme  Court  from  extending  to  constitutional  cases  of  an\ 
extrajudicial  nature.     On  that  August  27th,  it  was  twice 
provided  that  jurisdiction  should  extend  to  constitutional 
cases  of  a  judicial  nature.     The  first  provision  was  the  text 
of  the  draft  as  amended  in  Johnson's  motion.     This  first 
provision  gave  rise  to  the  first  case  of  constitutional  constru- 
ing on  record.     The  words,  "  the  jurisdiction  of  the  Supreme 
"  Court  shall  extend  to  all  cases  arising  under  this  consti- 
^'tution,"  were  construed  by  the  Framers  to  mean  that  the 
jurisdiction  was  constructively  limited  to  cases  of  a  judicial 
nature,  that  is  to  say,  expressly  extended  to  cases  of  a  judi- 
cial nature  and  not  further  to  cases  of  an  extrajudicial  na- 
ture.     On  second  thought,  they  were  not  satisfied  with 
this  merely  constructive  meaning  for  their  words  and  sub- 
stituted the  other  words,  which  were  selected  because  ex- 
pressly and  not  constructively  importing  their  intended 
meaning.     By  this  substitution  the  text  read :  "  The  judl- 
'•'' cial  power  shall  extend  to  all  cases  arising  under  this 
*' constitution."     The  express  meaning  of  the  new  text  and 
the  construed  meaning  of  the  old  text  thus  perfectly  coin-   i 
cided.     This  meaning  was  later  in  the  day  reafiirmed  by  the  I 
insertion  of  the  words,  "both  in  law  and  equity,"  upon  a  1 
motion  which  could  have  occasioned  no  debate,  for  Madison  I 
does  not  mention  it,  although  it  is  of  course  recorded  in  I 
the  Journal."^  | 

It  was  thus  generally  assumed  in  the  convention  that  all/ 
constitutional  cases  of  a  judicial  nature  were  just  as  much 
extended  to  by  the  judicial  power,  as  ail  statutory  cases  of  a 
judicial  nature.  That  is  to  say,  cases  of  a  judicial  nature, 
which  involved  the  constitutional  validity  of  legislative 
acts  enacted  under  the  constitution,  were  just  as  much  ex- 
tended to,  as  judicial  cases  involving  the  statutory  validity 
of  executive  acts  performed  under  a  statute. 

From  the  foregoing  it  can  not  be  doubted  that  the  con- 

*  Journal,  300.  Those  words  were  incorporated  in  the  revised  draft  reported 
on  September  12th,  from  which  the  word  "both  "  was  struck  out,  by  a  motion 
of  September  loth.     Journal,  383,  384. 


340  HISTORICAL  COMMENTARY. 

vention  intended  that  the  judicial  power  should  compre- 
hend competency  to  ascertain  whether  an  act  of  Congress 
be  a  law  made  under  the  constitution  or  not,  and,  if  not  so 
made,  to  hold  it  to  be  no  law  thereunder.  The  propriety 
of  a  judicial,  competency  so  to  act  was  generally  accepted. 
The  anxiety  was  to  confine  the  Supreme  Court  to  judicial 
action  and  to  prevent  it  from  exercising  a  general  jurisdic- 
tion in  constitutional  cases,  whether  of  a  judicial  or  extra- 
judicial nature. 

The  generation  of  1876  and  1877  learned  to  its  cost,  how 
well  founded  were  Madison's  fears  of  the  judiciary  ming- 
ling in  extrajudicial  controversies.  Righteous  history  re- 
cords the  wrongful  termination  of  the  presidential  crisis  of 
1876  and  1877.  The  year  of  the  hundreth  anniversary  of 
independence  began  in  hope  and  ended  in  fear.  It  closed 
during  the  execution  of  a  coup  d''  etat  by  which  military 
force,  under  the  control  of  the  party  in  power,  nullified  the 
election  of  a  President.  On  the  4th  of  March,  1877,  men 
witnessed  the  triumph  of  the  un-American  conspiracy.  On 
that  ill-omened  day,  the  wrong  was  consummated  by  an  in- 
stallation of  a  President,  which  was  made  under  such  evil 
auspices,  that  no  augur  could  have  called  it  an  inaugura- 
tion. 

In  the  conflict  between  the  two  houses  of  Congress  upon 
the  counting  of  the  votes,  the  expedient  of  an  electoral 
commission  as  arbiter  was  resorted  to.  Although  the  com- 
mission was  extrajudicial,  three  judges,  being  one-third  of 
a  full  Supreme  Court,  were  made  members  thereof.  The 
commission  was  so  constituted,  that  these  judges  had  power 
to  turn  the  scale  whichever  way  two  of  them  might  decide. 
Thus  one-third  of  the  Supreme  Court  were  brought  into  di- 
rect relation  with  the  Senate  and  indirect  relation  with  the 
army.     The  army  was  behind  the  Senate. 

The  Senate  was  armed.  The  House  of  Representatives 
was  unarmed.  Its  only  hope  was  in  the  mediation  of  the 
judges.     That  hope  failed  it. 

Two  matters  of  the  gravest  moment  here  require  consid- 
eration. 

First :  The  case  was  avowedly  an  extrajudicial  one.     It 


HISTORICAL   COMMENTARY.  341 

was  a  controversy  between  tlie  two  houses  of  Congress.  It 
is,  therefore,  distinct  from  cases  arising  under  the  constitu- 
tion to  which  the  judicial  power  unquestionably  extends. 
It  is  also  distinct  from  those  cases  arising  under  the  consti- 
tution, as  to  which  it  has  been  questioned  whether  the  ju- 
dicial power  does  or  does  not  extend  to  them.  The  contro- 
versy between  the  Senate  and  the  House  was  avowedly  an 
extrajudicial  one.  It  was  necessarily  so,  according  to  the 
form  of  government. 

Second  :  What  the  Framers  thought  the  whole  Supreme 
Court  could  not  do,  one-third  of  the  court  failed  to  do,  mz. , 
intervene  as  mediators  in  an  extrajudicial  controversy  to 
the  satisfaction  of  both  oj^posing  parties.  The  foregoing 
pages  of  this  chapter  show  that  such  an  intervention  of  the 
judges  of  the  Suj^reme  Court  in  the  extrajudicial  contro- 
versy between  the  Senate  and  the  House  was  made  in  di- 
rect contradiction  to  the  express  intentions  of  the  Framers. 
They  expressly  intended  that  the  Sui)reme  Court  should 
not  have  jurisdiction  of  extrajudicial  controversies  arising 
under  the  constitution. 

Was  this  drawing  of  judges  of  the  Supreme  Court  into 
an  extrajudicial  controversy  an  isolated  case  \  Or  is  it  to 
be  a  precedent  for  the  future,  whenever  elections  fail  to 
elect  \  That  Madison  was  indeed  prescient,  is  proved  by 
the  dire  event  now  known.  Did  he  forsee  others,  like  it, 
yet  to  come  \    God  forbid ! 

Before  dismissing  the  present  topic  an  additional  remark 
is  not  improper.  In  striking  out  the  words  ' '  the  jurisdic- 
''tion  of  the  Supreme  Court,"  and  substituting  the  words, 
''the  judicial  power,"  important  consequences  followed  as 
to  the  context  in  the  draft.  The  draft  of  the  constitution 
contained  a  chain  of  four  clauses,  which  were  linked  to- 
gether by  the  iterative  use  of  the  word  "jurisdiction."  In 
the  corresponding  portion  of  the  constitution  that  word  is 
used  twice  only.  The  first  of  the  four  clauses  has  been 
changed  as  mentioned.  The  second  and  third  retain  the 
terms,  "original  jurisdiction,"  and  "appellate  jurisdic- 
"tion,"  respectively.  The  fourth  clause  of  the  draft  re- 
lated to  the  U.  S.  inferior  courts  and  the  nature  of   the 


342  HISTORICAL   COMMENTARY. 

*'  jurisdiction  "  which  they  might  receive.  This  clause  was 
struck  out  and  no  clause  whatsoever  was  inserted  in  the 
constitution  mentioning  the  jurisdiction  of  the  U.  S.  infe- 
rior courts.  Thus  the  frame  of  the  whole  judicial  article  of 
the  draft  was  changed  by  the  alteration  of  the  first,  and 
the  omission  of  the  fourth,  of  its  jurisdiction  clauses.  From 
what  has  been  said  above,  it  seems  that  the  fear  of  an  ex- 
trajudicial jurisdiction  of  the  Supreme  Court  had  a  good 
deal  to  do  with  breaking  the  chain  of  four  jurisdiction 
clauses  found  in  the  draft.  That  fear  has  consequently  a 
place  in  the  history  of  the  formation  of  the  constitutional 
text,  which  deserves  the  fullest  investigation. 

In  conclusion,  it  is  contended  that  the  foregoing  shows 
that  it  is  correct  to  affirm  proposition  4th  on  page  294, 
namely,  that  the  Framers  actually  intended  that  the  U.  S. 
Supreme  Court  should  be  competent  in  all  litigations  before 
it,  to  decide  upon  the  questioned  constitutionality  of  U.  S. 
laws,  and  to  hold  the  same  void  when  unconstitutional. 


CHAPTER  XXXYI. 

Of  tlie  intentions  of  tlie  Kramers  concerning-  appeals 
from  tlie  state  judiciaries  to  tlie  17.  S.  Supreme 
Court. 

No.  1.  Of  the  5th  and  6th  propositions  concerning  the 
Framers'^  intentions. 

No.  2.  Examination  of  the  debates  and  proceed/tngs  of 
the  convention^  in  order  to  ascertain  their  intentions  con- 
cerning the  said  propositions. 

No.  3.  Of  certain  views  of  Chief  Justice  Marshall  on 
pages  376,  377  of  6  Wheaton. 

No.  4.  Further  examination  of  the  debates  of  the 
Framers  made  requisite  by  the  said  views  of  Marshall, 


HISTORICAL   COMMENTARY.  343 

Chapter  36.  will  be  devoted  to  the  two  propositions 
concerning  the  intentions  of  the  Framers  still  remaining  for 
consideration. 


No.   1. 

Of  the  5th  and  6th  propositions  concerning  the  Framers' 
intentions. 

These  propositions  maintain  that  the  Framers  actually 
intended, 

Fifth  :  that  whenever  the  judiciary  of  a  state  in  any  liti- 
gation should  decide  the  question  of  (federal)  constitution- 
ality in  favour  of  the  state  law  or  state  constitution,  im- 
peached as  wholly  or  in  part  so  unconstitutional,  there 
should  be  a  right  of  appeal  to  the  U.  S.  Supreme  Court  upon 
that  question : 

Sixth  :  and  tha  whenever  the  judiciary  of  a  state  in  any 
litigation  should  decide  the  question  of  constitutionality 
against  the  U.  S.  law  impeached  as  unconstitutional,  there 
should  be  a  right  of  appeal  to  the  U.  S.  Supreme  Court  upon 
that  question. 

• 
These  propositions  may  be  considered  together.     In  a 

strict  sense  they  are  not  within  the  limits  of  the  subject  of 

this  Essay.     If  true,  however,  they  elucidate  the  subject. 

If  it  also  be  true,  that  the  law  of  the  constitution  on  these 

heads  accords  with  the  intentions  of  those  who  framed  its 

text,  an  edifying  comparison  with  its  law  on  the  subject  of 

this  Essay  will  be  furnished. 

No.  2. 

Examination  of  the  debates  and  proceedings  of  the  con- 
mention,  in  order  to  ascertain  their  intentions  concerning 
the  said  proposition. 

The  debates  and  proceedings  of  the  convention  will  now 
be  examined  in  connection  with  the  foregoing  propositions. 


344  HISTORICAL   COMMENTARTf. 

The  first  clause  of  Randolph's  ninth  resolution  provided, 
''  that  a  national  judiciary  be  established,  to  consist  of  one  or 
"  more  supreme  tribunals  and  of  inferior  tribunals."  On 
June  4th,  the  first  part  of  this  clause  was  agreed  to  by  the  con- 
vention unanimously.  The  second  v^as  amended  so  as  to  read, 
*'to  consist  of  one  supreme  tribunal,  and  one  or  more 
''inferior  tribunals,"  and  in  that  shape  passed  in  the 
affirmative.* 

On  the  next  day,  June  5th,  there  was  a  reconsideration 
of  the  clause  when  the  following  proceedings  took  place,  f 

''  Mr.  Rutledge  having  obtained  a  rule  for  reconsideration 
"of  the  clause  for  estahlishing  inferior  1;.  tribunals  under 
''  the  national  authority,  now  moved  that  that  part  of  the 
"  clause  in  the  ninth  resolution  should  be  expunged  ;  argu- 
"  ing  fJiat  the  state  tribunals  might  and  ought  to  be  left, 
''in  all  cases ^  to  decide  in  the  first  instance^  the  right  of 
''  appeal  to  the  supreme  national  tribunal  being  sufficient  to 
'^  secure  the  national  rights  and  uniformity  of  judgment ; 
"that  it  was  making  unnecessary  encroachments  upon  juris- 
' '  diction  of  the  states,  and  creating  unnecessary  obstacles 
"to  their  adoption  of  the  new  system. 

"Mr.  Sherman  seconded  the  motion. 

"Mr.  Madison  observed,  that,  unless  inferior  tribunals 
''  were  dispersed  throughout  the  republic  w\\h  final  X  juris- 
"  diction  in  many  cases,  J  appeals  would  be  multiplied  to  a 
"  most  oppressive  degree  ;  that,  besides,  in  many  cases  an  ap- 
' '  peal  would  not  be  a  remedy.  What  was  to  be  done  after  im- 
"  proper  verdicts,  in  state  tribunals,  obtained  under  the  biased 
"directions  of  a  dependent  judge,  or  the  local  prejudices  of 
^'  an  undirected  jury  %  To  remand  the  cause  for  a  new  trial 
' '  Avould  answer  no  purpose.  To  order  a  new  trial  at  the 
"supreme  bar  would  oblige  the  parties  to  brmg  up  their 
^'witnesses,  though  ever  so  distant  from  the  seat  of  the 
''court.      An  effective  judiciary  establishment,  commen- 

*  Journal  97,  98.     Elliot  V.  155. 
t  Elliot  V.  158,  159,  160. 
X  Original  italics. 


HISTORICAL   COMMENTARY.  345 

*^  surate  to  the  legislative  authority,  was  essential.  A  gov- 
''ernment  without  a  proper  executive  and  judiciary  would 
"be  a  mere  trunk  of  a  body,  without  arms  or  legs  to  act  or 
"move. 

"Mr.  Wilson  opposed  the  motion  on  like  grounds.  He 
"  said,  the  admiralty  jurisdiction  ought  to  be  given  wholly 
"to  the  national  government,  as  it  related  to  cases  not  with- 
"  in  the  jurisdiction  of  a  particular  state,  and  to  a  scene  in 
"which  controversies  with  foreigners  would  be  most  likely 
"to  happen. 

"Mr.  Sherman  was  in  favor  of  the  motion.  He  dwelt 
"chieliyon  the  supposed  exi)ensiveness  of  having  anew 
"  set  of  courts,  when  the  state  courts  would  answer  the  same 
"purpose. 

"  Mr.  Dickinson  contended  strongly,  that  if  there  was  to 
^'he  a  national  legislature^  there  ought  to  he  a  national 
'^judiciary,  and  that  the  formier  ought  to  Jiane  authority 
"  to  institute  the  latter. 

"  On  the  question  for  Mr.  Rutledge- s  motion  to  strike  out 
"  '  inferior  tribunals,'  it  passed  in  the  affirmative.  Connec- 
"ticut,  New  York,  New  Jersey,  North  Carolina,  South 
' '  Carolina,  Georgia,  ay,  6 ;  Pennsylvania,  Delaware,  Mary- 
"land,  Virginia,  no,  4  ;  Massachusetts  divided. 

"Mr.  Wilson  and  Mr.  Madison  then  moved  in  pursuance 
"of  the  idea  expressed  by  Mr.  Dickinson,  to  add  to  the 
"ninth  resolution  the  words  following  :  '  that  the  national 
"  '  legislature  be  empowered  to  institute  inferior  tribunals.' 
"  They  observed,  that  there  was  a  distinction  between  es- 
"  tablishing  such  tribunals  absolutely,  and  giving  a  discre- 
"  tion  to  the  legislature  to  establish  or  not  to  establish  them. 
' '  They  rei)eated  the  necessity  of  some  such  provision. 

"  Mr.  Butler.  The  people  will  not  bear  such  innovations. 
' '  The  states  will  revolt  at  such  encroachments.  Supposing 
"such  an  establishment  to  be  useful,  we  must  not  venture 
"  it.  We  must  follow  the  example  of  Solon,  who  gave  the 
"  Athenians,  not  the  best  government  he  could  devise,  but 
"the  best  they  would  receive. 

"Mr.  King  remarked,  as  to  the  comparative  expense,  that 
''Hhe  establishment  of  inferior  tribunals  would  cost  in  fin- 


346  HISTORICAL   COMMENTARY. 

^^  itely  less  than  the  appeals  that  would  he  prevented  hy 
^^  them. 

"On  this  question,  as  moved  by  Mr.  Wilson  and  Mr. 

''Madison,- Massachusetts,  ISTew  Jersey,  Pennsylvania, 

''Delaware,  Maryland,  Virginia,  North  Carolina,  ay,  8  ; 
"Connecticut,  South  Carolina,  no,  2;  New  York  divided 
"(in  printed  Journal,  New  Jersey,  no)." 

The  foregoing  debate  and  resolution  are  dated  June  5th, 
or  five  days  after  the  convention  had  resolved  that  the  leg- 
islature of  the  Union  should  have  power  to  negative  all 
state  laws  contravening  the  articles,  laws  and  treaties  of  the 
Union.  On  July  17th  the  project  of  such  a  legislative  neg- 
ative power  was  discarded  and  in  its  place  was  substituted 
the  present  plan  of  judicial  discrimination  in  applying  the 
general  derogation  of  a  nonohstarite  clause  to  state  laws 
contrariant  to  federal  laws. 

The  precise  date  on  which  this  change  was  made  must 
not  be  forgotten,  for  on  the  next  day,  July  18th,  the  follow- 
ing action  and  debate  took  place.  "^ 

"The  twelfth  resolution  [of  the  committee  of  the  whole] 
"'that  the  national  legislature  be  empowered  to  appoint 
"  'inferior  tribunals,'  being  taken  up, 

* '  Mr.  Butler  could  see  no  necessity  for  such  tribunals. 
"  The  state  tribunals  might  do  the  business. 

"Mr.  L.  Martin  concurred.  They  will  create  jealousies 
"and  oppositions  in  the  state  tribunals,  with  the  jurisdic- 
"  tion  of  which  they  will  interfere. 

"Mr.  Gorham.  There  are  in  the  states  already  federal 
"  courts,  with  jurisdiction  for  the  trial  of  piracies,  &c.,  com- 
"mitted  on  the  high  seas.  No  complaints  have  been  made 
"by  the  states  or  the  courts  of  the  states.  Inferior  tribu- 
' '  rials  are  essential  to  render  the  authority  of  the  national 
"  legislature  effectual. 

"Mr.  Randolph  observed,  that  the  courts  of  the  states 
"can  not  be  trusted  with  the  administration  of  national 
"laws.  The  objects  of  jurisdiction  are  such  as  will  often 
"  place  the  general  and  local  policy  at  variance. 

"Mr.  Gouverneur  Morris  urged  the  necessity  of  such  a 
"provision. 

*  Elliot  V.  331. 


HISTORICAL   COMMENTARY.  347 

^'  Mr.  Slierman  was  willmg  to  give  the  power  to  the  leg- 
^Hslature,  hut  wished  them  to  make  use  of  the  state  tribu- 
''  v/aZ,  whenever  it  could  be  done  with  safety  to  the  gen- 
'' eral  interest.'''  [This  observation  of  Sherman'' s  is  deci- 
sive upon  the  question.  If  the  legislature  of  the  Union 
could  make  use  of  the  state  tribunals  instead  of  using  in- 
ferior U.  S.  tribunals,  appeals  from  the  former  must  have 
been  as  much  intended  as  appeals  from  the  latter. '\ 

^'Col.  Mason  thought  that  circumstances  might  arise, 
"which  could  not  be  now  foreseen,  whicli  might  render 
"  such  a  power  absolately  necessary. 

"  On  the  question  for  agreeing  to  the  twelfth  resolution, 
''empowering  the  national  legislature  to  appoint  inferior 
"tribunals,  it  was  agreed  to,  nem,.  con.''"^ 

On  August  27th,  Dickinson  moved  to  amend  the  draft  by 
providing  that  the  judges  might  be  removed  by  the  execu- 
tive on  the  application  of  both  houses  of  Congress,  f  This 
motion  was  defeated,  only  one  state  present  voting  for  it. 
In  the  debate,  Rutledge,  the  chairman  of  the  committee 
whose  draft  of  constitution  was  under  discussion,  said  : 

"7/*  the  Supreme  Court  was  the  judge  between  the  United 
''States  arid  the  particular  states^  this  alone  would  be  an 
"  insuperable  objection  to  the  motion.''^ 

Rutledge's  observation  could  not,  of  course,  have  alluded 
to  suits  between  the  United  States  and  any  particular  state, 
whether  the  former  sued  or  was  sued  by  the  latter.  No 
such  suits  were  ever  thought  of  by  the  Framers.:|:  He  could 
only  have  referred  to  the  U.  S.  Supreme  Court  judging  de- 
cisively and  differently  from  the  judges  of  a  particular  state 
as  to  conflicts  between  the  laws  of  the  Union  and  those  of 
such  state.  He  must  therefore  have  meant  appeals  to  the 
U.  S.  Supreme  Court  from  the  state  courts,  in  which  the 
appellant  claimed  that  the  latter  had  decided  such  conflicts 
adversely  to  the  laws  of  the  Union. 

~  *  Elliot  V.  331. 

t  lb.  481. 

X  The  fact  that  the  United  States  can  not  sue  a  state  is  one  of  great  moment 
in  constitutional  jurisprudence,  to  which  the  writer's  attention  was  called 
many  years  ago  by  a  distinguished  jurist  of  a  past  generation. 


348  HISTORICAL    COMMENTARY. 

A  consideration  of  the  foregoing  extracts,  it  is  maintained, 
shows  the  following  points  to  be  correct, 

First :  that  at  one  time  the  Framers  decided  that  there 
should  be  only  one  judicial  tribunal  of  the  Union,  to  which 
as  a  supreme  court  appeals  from  the  state  judiciaries  should 
be  made  in  litigations  of  national  cognizance,  and  that  for 
the  mass  of  such  litigations  state  courts  should  be  tribunals 
of  first  instance.  This  would  have  been  the  judicial  system 
of  the  constitution,  if  Rutledge's  motion  had  been  ad- 
hered to. 

Second  :  that  a  jurisdiction  of  the  U.  S.  courts,  which 
would  be  absolutely  exclusive  of  any  jurisdiction  of  the 
state  courts  as  to  all  possible  federal  questions,  cases,  causes, 
suits,  processes,  points  and  rights,  would  necessitate  a  posi- 
tive and  actual  establishment  of  a  full  system  of  inferior 
courts  of  the  United  States  in  the  body  of  the  constitution 
itself  ;  a  thing  which  the  Framers  expressly  avoided. 

Third  :  that  the  system  actually  adopted  is  a  media  sen- 
tentla  between  the  two  foregoing ;  w^hich  system  is  one  by 
which  every  inferior  court  is  ordained  and  established  by 
legislation  found  in  some  act  of  Congress  and  not  in  the 
t       constitution  itself.     This  system  was  originated  hy  Dick- 
\  \uison  and  Tnay  be  called  hy  his  name.'^ 
\\Fourth :  that  whenever  the  judiciary  of  a  state  should 
.«i|^dicate  a  litigation  which  is  claimed  to  be  within  the 
terms  of  paragra-ph  2.  Y I. ,  and  should  refuse  to  be  bound 
by  the  constitutional  text  or  by  the  U.  S.  law  or  treaty  in- 
voked, an  appeal  was  intended  to  lie  to  the  U.  S.  Supreme 
Court. 

No.  3. 

Of  certain  views  of  C.  J.  Marshall  on  pages  376,  377  of 
6  Wheat on^  which  here  require  consideration. 

If  Chief  Justice  Marshall's  views  on  pages  37b  and  377  of 
6  Wheaton  be  correct,  what  the  Framers  refused  to  do,  as 

*How  much  of  the  constitution  may  be  traced  to  an  origin  in  Dickinson's 
mind,  is  a  most  interesting  question.  Per]iaps,  a  full  answer  may  show  that 
a  very  great  part  of  it  may  be  traced  to  such  an  origin. 


HISTORICAL   COMMENTARY.  349 

well  as  what  they  resolved  to  do,  ought  to  be  considered,  in 
order  to  fully  appreciate  their  intentions  concerning  the  ap- 
peals in  question.  On  those  pages  of  the  opinion  in  Cohens 
D.  Virginia,  he  lays  great  stress  upon  the  first  two  points 
urged  by  the  defence  against  the  jurisdiction  of  the  court. 
They  were,  first,  that  a  state  was  defendant  and,  second, 
that  no  writ  of  error  lies  from  the  U.  S.  Supreme  Court  to 
a  state  court.  He  strenuously  denies  the  correctness  of 
these  points  and  observes  : 

"The  questions  presented  to  the  court  by  the  two  first 
"points  made  at  the  bar  are  of  the  first  magnitude,  and 
' '  may  be  'truly  said  to  affect  the  Union.  They  exclude  the 
"inquiry,  whether  the  constitution  and  laws  of  the  United 
"States  have  been  violated  by  the  judgment  which  the 
"plaintiff's  in  error  seek  to  review;  and,  maintain,  that, 
"admitting  such  violation,  it  is  not  in  the  power  of  the  gov- 
"ernment  to  apply  a  corrective.  They  maintain,  that  the 
"  nation  does  not  possess  a  department  capable  of  restrain- 
"ing  peaceably,  and  by  authority  of  law,  any  attempts 
"which  may  be  made,  by  a  part,  against  the  legitimate 
' '  powers  of  the  whole  ;  and  that  the  government  is  reduced 
"  to  the  alternative  of  submitting  to  such  attempts,  or  of  re- 
"  sisting  them  by  force.  They  maintain  that  the  constitu- 
' '  tion  of  the  United  States  has  provided  no  tribunal  for  the 
^'  final  construction  of  itself,  or  of  the  laws  or  treaties  of  the 
"nation  ;  but  that  this  power  may  be  exercised  in  the  last 
"  resort  by  the  courts  of  every  state  in  the  union. .  That  the 
"  constitution,  laws,  and  treaties  may  receive  as  many  con- 
"structions  as  there  are  states  ;  and  that  this  is  not  a  mis- 
"  chief,  or  if  a  mischief,  is  irremediable." 

Marshall  thus  asserts  the  existence  of  a  dilemma.  One 
horn  is  department  of  government  proceeding  peacefully  in 
the  cases  in  question.  Practically  this  means  under  the 
constitution  appeals  from  the  state  judiciaries  to  the  U.  S. 
Supreme  Court  in  such  cases.  The  other  horn  is  the  whole 
(/.  e.  the  union)  using  force  against  a  part  (/.  e.  a  state)  in 
the  cases  in  question. 

If  Marshall's  view  be  correct,  the  Framers  were  substan- 
tially in  such  a  dilemma  as  to  the  cases  in  question :  that  is 


350  HISTORICAL   COMMENTARY. 

to  say,  a  dilemma,  one  horn  of  which  required  them  to  decide 
upon  a  department  of  government  proceeding  peaceably 
either  by  legislative  or  by  judicial  power,  while  the  other 
horn  required  them  to  decide  upon  the  union  proceeding  by 
the  use  of  force  against  a  state.  After  the  rejection  of  the 
legislative  negative,  they  were  not  merely  substantially,  but 
formally,  in  it. 

Cohens  v.  Virginia  was  decided  in  1821,  that  is  to  say, 
after  the  publication  of  the  Journal  of  the  Convention,  but 
prior  to  that  of  Madison's  rejDort  of  its  debates.  It  is, 
therefore,  necessary  to  examine  those  debates  in  connection 
with  the  journal  for  any  light  they  may  throw  upon  Mar- 
shall's dilemma. 


No.   4. 

Furtlier  consideration  of  the  Framers^  debates  and  pro- 
ceedings^ made  requisite  by  the  said  mews  of  Marshall, 

The  two  measures  for  meeting  the  difficulty  of  conflicts 
between  the  laws  of  the  Union  and  those  of  the  states,  upon 
which  the  Framers'  views  have  been  rehearsed,  were  the  leg- 
islative negative  power  and  that  actually  adopted  in  para- 
graph 2.  YI.  These  two  measures,  however,  by  no  means 
cover  the  whole  ground  considered  by  the  convention. 
Neither  Patterson's  nor  Randolph's  plan  relied  simply  on 
one  of  the  measures  aforesaid.  Each  backed  the  operation 
of  its  respective  measure  with  another  proposed  institution 
which  was  common  to  both.  This  institution  was  federal 
execution  by  the  Union  against  any  state  violating  the  new 
Articles  of  Union  in  any  casus  foederis.  That  is  to  say,  if 
any  state  should  oppose  the  judicial  application  of  the  leg- 
islative derogation  in  one  plan,  or  the  legislative  exercise  of 
the  negative  power  in  the  other,  the  Union  could  proceed 
by  federal  execution  against  such  state  to  secure  the  fulfil- 
ment of  its  obligation  as  a  member  of  the  Union. 

One  of  the  clauses  of  Randolph's  6th  resolution  declared 
that  the  national  legislature  ought  to  be  empowered  ' '  to  call 
"forth  the  force  of  the  Union  against  any  member  of  the 


HISTORICAL   COMMENTARY.  351 

* '  Union  failing  to  fulfil  its  duty  under  the  articles  thereof."  * 
On  May  31st.,  this  clause  was  considered.  Madison  was 
apparently  the  only  speaker,  saying  that  "he  hoped  that 
' '  such  a  system  would  be  framed  as  might  render  this  re- 
' '  source  unnecessary,  and  moved  that  the  clause  be  post- 
"poned."t  Ttiis  motion  was  agreed  to  unanimously  and 
the  measure  was  in  substance,  though  not  in  form,  definitely 
rejected. 

The  Framers  did  not  take  long  to  act  thus  upon  the  head 
of  federal  execution  against  a  state.  One  reason  for  such 
promptness  was,  undoubtedly,  the  fact  that  the  proposal  of 
such  an  institution  had  been  long  before  the  country.  The 
origin  of  Randolph's  federal  execution  clause  is  to  be  found 
in  the  plan  of  a  confederation  of  the  United  States,  which 
was  submitted  in  1778  to  the  legislature  of  South  Carolina 
by  AVilliam  Henry  Drayton.  The  8tli  article  of  Drayton's 
plan  prescribed  that  in  case  any  state  should  in  any  respect 
violate  the  x^roposed  articles  of  confederation,  '^  the  Congress 
"shall,  within  one  year  thereafter,  declare  such  state  under 
^'the  'ban  of  the  confederacy^  and  by  the  utmost  vigour  of 
"  arms  forthwith  proceed  against  such  state,  until  it  shall 
"  have  paid  due  obedience,  upon  which  the  ban  shall  be  ta- 

"kenoffrX 

The  use  of  the  term  "ban"  in  the  foregoing  is  alone  suf- 
ficient to  show  that  Drayton's  model  in  drafting  his  8th 
article  was  the  public  law  of  the  then  German  empire. 
Reference  by  Madison  in  the  convention  to  the  ban  of  the 
German  empire  will  be  found  in  Elliot  Y.  210.  §  In  the 
present  German  empire  a  similar  institution,  that  of  federal 
execution  against  a  state,  is  expressly  provided  for.  Arti- 
cle 19.  of  the  existing  constitution  of  that  empire  is  thus 
translated  by  the  writer :  "If  the  members  of  the  federation 
"do  not  fulfil  their  constitutional  federal  duties,  they  can 
"beheld  thereto  by  way  of  execution.     This  execution  is 

*  Journal,  p.  68. 

t  Elliot  V.  140. 

X  Niles  :  Principles  and  Acts  of  the  Revolution,  ed.  1876,  p.  368. 

§  Cf.  Weiske's  Rechtslexikon,  I.  604. 


352  HISTOKICAL   COMMENTARY. 

"to  be  decreed  by  the  federal  council  and  done  by  the 
"  emperor."  ^ 

It  may  be  added  that  the  members  of  the  federation  are 
the  several  states  of  the  empire  and  that  the  execution  is 
frequently  termed  federal  execution,  f 

In  connection  with  the  term  ''  execution  "  thus  used  in  a 
constitution  written  in  1871,  Mason's  remarks  on  June  20th, 
1787,  (Elliot  Y.  217)  in  the  Framers'  convention  upon  the 
subject  of  "military  execution,"  may  be  referred  to.  Ma- 
son's remarks  and  Drayton's  8th  article,  taken  together, 
show  that  the  words  han,  and  execution  have  both  been  used 
in  America  in  the  same  federal  sense  as  the  corresponding 
words  Acid  and  Execution  in  Germany. :j:  It  may  be  added 
that  federal  execution  against  a  state  is  a  well  known  G-er- 
man  institution,  of  which  other  examples  may  be  given.  It 
existed  in  the  former  Germanic  Federation  both  in  theory 
and  practice.  Under  the  operation  thereof  was  made  "the 
"Ordinance  for  Federal  Execution"  of  August  3d,  1820 
{Bundes-Executionsordnung).  %  It  also  existed  in  the 
North  German  Federation,  the  predecessor  of  the  present 
federal  empire.  By  the  North  German  constitution  "the 
"execution  can  be  extended  unto  sequestration  of  the  par- 
"ticular  land  and  of  its  power  of  government."  The  date 
of  this  provision  was  1867.  || 

Federal  execution  by  armed  process  against  a  state  in  cer- 
tain casus  foederis  was  also  proposed  by  Patterson's  plan 
of  new  articles  of  the  old  confederation.  The  2d  paragraph 
of  his  7th  resolution  relates  thereto,  and  has  been  previously 
quoted. Tf  It  provides  that  "if  any  state^  or  any  body  of 
"men  in  any  state,"  shall  oppose  or  prevent  the  carrying 
into  execution  of  federal  acts  or  treaties,  the  federal  execu- 
tive shall  be  authorized  to  call  forth  the  power  of  the  con- 

*  See  the  text  of  constitution  in  L.  von  Roenne's  Verfassung  des  Deutschen 
Belches,  ed.  5th,  p.  84. 

t  See  von  Roenne's  cited  work,  index,  under  Bundeaexecution  and  Bundes- 
siaaten. 

X  Cf.  Weiske  :  on  Acht,,  in  article  Bann. 

§  L.  von  Roenne  :  Staatsrecht  des  Deutschen  Belches,  ed.  2,  vol.  I,  p.  72,  note. 

II  L.  von  Roenne's  first  cited  work,  note  on  p.  84. 

i  Page  314  ante. 


HISTORICAL   COMMENTARY.  353 

federated  states,  to  enforce  and  compel  obedience  to  such 
acts,  or  an  observance  of  such  treaties.  * 

Now  the  15th  and  18th  clauses  of  section  8.  I.  of  the  con- 
stitution prescribe  that  Congress  shall  have  power  ^'  to  pro- 
' '  vide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
"Union"  and  "to  make  all  laws  which  shall  be  necessary 
"and  proper  for  carrying  into  execution  the  foregoing" 
power.  The  similarity  of  these  constitutional  provisions  to 
one  branch  of  the  dispositions  of  the  2d  paragraph  of  Pat- 
terson's 6th  resolution  is  obvious.  This  makes  all  the  more 
marked  the  fact  that  the  Framers  did  not  frame  a  text  fol- 
lowing the  other  branch  of  those  dispositions,  mz.^  that 
which  prescribed  the  use  of  federal  arms  against  a  state 
because  it  opposed  or  prevented  the  execution  of  federal 
acts  and  treaties.  These  dispositions  the  Framers  did  not 
copy,  while  copying  the  others,  and  while  also  copying  the 
immediately  previous  paragraph,  which  made  federal  acts 
and  treaties  the  supreme  law  of  such  opposing  state,  bind- 
ing the  judiciary  of  the  state,  notwithstanding  any  state 
laws  containing  things  to  the  contrary. 

It  is  clear  from  the  foregoing  that  the  absence  of  clauses 
in  the  new  constitution  relating  to  a  ban  of  the  Union  and 
prescribing  federal  execution  against  a  state  under  tliat  ban, 
can  not  be  attributed  to  inadvertence  or  want  of  considera- 
tioji  on  the  part  of  the  Framers.     The  intentional  absence 
of  such  clauses  and  the  deliberate  rejection  of  the  legisla- 
tive negative 4)ower  have  the  following  result,  if  Marshall's 
dilemma  be  a  true  one.     Some  judicial  measure  for  meeting 
a  case  arising  under  the  express  provision  of  paragraph  2. 
VI.  must  have  been  intended  by  the  Framers,  that  is  to 
j  say,  the  case  of  a  state  judiciary  erroneously  or  intention- 
\  ally  refusing  to  hold  itself  bound  by  the  constitution  or 
(other  law  of  the  Union  and,  in  its  stead,  applying  and  caus- 
ung  to  be  executed  a  contrariant  state  law  or  state  constitu- 
Ition.     If  no  judicial  measure  for  meeting  such  a  conflict  was 
I  intended  by  the  Framers,  there  was,  according  to  the  di- 
j  lemma,  a  manifest  lacuna  in  their  measures  for  getting  the 
'  laws  of  the  Union  executed. 

*Elliot  V.  192. 

23  0. 


354  HISTORICAL   COMMENTARY. 

If  there  was  actually  such  a  lacuna,  paragraph  2.  YI. 
shows  it  to  have  been  intentional,  because  that  text  creates 
the  cases  without  which  the  lacuna  would  not  exist. 

It  should  here  be  added  that  such  a  lacuna  existed  in  the 
Articles  of  Confederation,  except  as  to  appeals  in  cases  of 
captures. 

It  may  also  be  added  that  in  the  then  existing  German 
Empire,  the  primlegium  de  non  appellando  was  a  recog- 
nized institution  deviating  from  the  common  law.  By  it,  a 
prince  of  the  Empire  might  secure  exemption  from  appeals 
from  his  own  to  the  imperial  judiciary.  Frederick  the  Great 
secured  this  primlegium  for  all  his  territories  within  the 
Empire. 

The  Framers  had  thus  ample  notice  of  the  consequences 
of  non -appellation  to  a  federal  from  state  judiciaries,  both 
in  America  and  Europe. 

Assuming  it  to  be  true  that  before  the  rejection  of  the 
legislative  negative  the  Framers  were  substantially,  and 
after  it  formally,  in  Marshall's  dilemma,  what  they  did  not 
do  concerning  federal  execution  against  a  state,  and  what 
they  did  do  concerning  the  U.  S.  Supreme  Court  and  affect- 
ing the  judiciaries  of  the  states,  unite  in  proving  that  they 
intended  to  provide  for  appeals  from  the  latter  to  the  former, 
whenever  it  should  be  claimed  that  the  latter  unconstitu- 
tionally prevented  the  execution  of  the  laws  of  the  Union. 

In  conclusion,  this  chapter,  it  is  contended,  shows  that  it 
is  correct  to  affirm  the  5th  and  6th  propositions  as  to  the 
intentions  of  the  Framers,  as  stated  on  pages  294  and  295, 
ante. 


HISTORICAL   COMMENTARY.  355 


CHAPTER  XXXYII. 


Of  appeals  from  tlie  inferior  courts  of  tlie  United 
States  to  the  Supreme  Court  as  existing:  under 
the  constitution  and  as  intended  t>y  tlie  orig^inal 
draft  of  tliat  instrument. 


A  subject  distinct  from,  but  relating  to,  the  foregoing  is 
that  of  appeals  from  the  U.  S.  inferior  courts  to  the  IT.  S. 
Supreme  Court.  Some  observations  thereupon  will  now  be 
useful  for  subsequent  reference. 

The  legal  existence  of  the  appeals  in  question  has  never 
been  questioned.  The  idea  generally  entertained  of  the 
nature  of  such  an  appeal  is  that  it  comes  from  an  inferior 
court,  in  which  original  jurisdiction  is  inherent,  to  a  supreme 
court,  to  which  appellate  jurisdiction  is  inherent,  that  is  to 
say,  from  one  court  of  native  or  inherent  jurisdiction  to 
another.  If  this  be  true  of  the  constitution,  it  is,  neverthe- 
less, true  that  a  different  sort  of  appeal  was  proposed  in  the 
original  draft  of  the  constitution. 

If  the  convention  intended  that  the  present  sort  of  ap- 
peals should  exist,  they  must  have  differed  from  the  com- 
mittee that  framed  the  draft  of  the  constitution.  That 
committee  must  have  intended  that  there  should  be  a  dif- 
ferent sort  of  appeals  from  the  inferior  courts  to  the  Su- 
preme Court.  Whether  the  convention  clearly  intended  to 
differ  from,  or  agree  with,  the  committee,  or  failed  to  have 
any  clear  intentions  as  to  the  nature  of  such  appeals,  are 
very  interesting  questions.  Tliey  need  not  be  answered 
here.  Another  question  may,  however,  well  be  answered, 
namely  :  what  must  have  been  intended  by  the  committee 


356  HISTORICAL   COMMENTARY. 

as  to  tlie  nature  of  such  appeals  according  to  the  draft  of 
the  constitution  reported  by  them. 

The  draft  of  the  constitution,  like  the  constitution  itself, 
established  one  Supreme  Court,  but  no  inferior  courts. 
Both  documents  provided  for  inferior  courts  being  estab- 
lished by  Congress  from  time  to  time. 

The  scheme  of  the  judicial  article  of  the  draft,  however, 
differed  considerably  from  that  of  the  constitution.  By 
that  article  of  the  draft,  the  jurisdiction  of  the  Supreme 
Court,  and  not  the  judicial  power  of  the  United  States,  ex- 
tended to  certain  cases  (and  controversies)  mentioned,  includ- 
ing cases  of  impeachment.  In  a  select  number  of  those  cases 
(and  controversies),  including  cases  of  impeachinent,  that 
jurisdiction  was  to  be  original,  and  in  all  the  other  cases 
(and  controversies)  mentioned  it  was  to  be  appellate.  Any 
part  of  the  jurisdiction  of  the  Supreme  Court,  except  that 
relating  to  cases  of  impeachment  of  the  President  of  the 
United  States,  might  be  assigned  to  tJie  inferior  courts  of 
the  United  States  by  congressional  legislation.  The  last  of 
these  dispositions  is  contained  in  a  clause,  which  is  simply 
wonderful  to  constitutional  students.  It  is  so,  because  it  is 
one  mentioning  the  jurisdiction  of  the  inferior  courts,  while 
the  constitution  contains  no  clause  whatsoever  mentioning 
their  jurisdiction.  The  text  of  the  draft  is  the  linal  sentence 
of  a  section  of  four  sentences,  the  first  of  which  defines  the 
extending  of  the  jurisdiction  of  the  Supreme  Court  (not  that 
of  the  judicial  power  as  in  the  constitution).  This  remark- 
able text  reads  thus :  ^ 

"  The  legislature  may  assign  any  part  of  the  jurisdiction 
' '  above  mentioned  (except  the  trial  of  the  President  of  the 
"United  States)  in  the  manner,  and  under  the  limitations, 
"which  it  shall  think  proper,  to  such  inferior  courts  as  it 
"  shall  constitute  from  time  to  time." 

Thus,  the  jurisdiction  of  the  inferior  courts  was  an  as- 
signed jurisdiction,  which  was  not  native  to,  or  inhei^ent  in, 
them,  but  was  part  or  parts  of  a  jurisdiction  native  to,  or 
inherent  in,  that  Supreme  Court  to  which  they  were  inferior. 
The  jurisdiction  of  the  inferior  courts  was  a  dative,  not  a 

*  Journal,  pp.  226,  227. 


HISTORICAL   COMMENTARY.  ^  357 

native,  jurisdiction  which  they  conld  only  get  as  assignees 
of  the  Supreme  Court  under  acts  of  Congress.  The  clause 
j  ust  quoted  is  deserving  of  the  prof  ound est  attention.  Fully 
to  appreciate  its  dispositions,  it  must  be  recalled  that  the 
first  of  the  four  jurisdiction  clauses  of  the  draft  prescribed, 
inter  alia^  that  ''the  jurisdiction  of  the  Supreme  Court " 
should  extend  "to  all  cases  of  admiralty  and  maritime  ju- 
' '  risdiction ' '  and  that  the  men  who  drafted  that  provision 
were  professional  lawyers  who  understood  the  legal  prin- 
ciples of  judicial  procedure  in  admiralty. 

These  principles  of  procedure  are  fhose  of  the  modern 
Civil  Law,  that  is  to  say,  those  of  the  Roman  law  modified 
by  the  Canon  law.  From  the  point  of  view  of  these  prin- 
ciples, the  proper  construction  to  be  put  upon  the  inferior 
courts  of  the  draft,  as  assignees  of  the  jurisdiction  of  a  su- 
perior court  that  was  new  and  living  and  not  ancient  and 
defunct,  is  as  follows,  viz.,  they  could  only  have  been  prop- 
erly and  scientifically  constituted  as  delegate  or  commis- 
sioned tribunals  inferior  to  a  Supreme  Court  that  was  either 
actually  or  constructively  the  sole  tribunal  delegating  juris- 
diction to  them  according  to,  and  in  execution  of,  the  as- 
signments of  Congress.  By  the  distinct  dispositions  of  the 
draft  their  jurisdiction  could  only  be  one  assigned  to  them  as 
assignees  of  the  Supreme  Court.  Their  jurisdiction  was  not 
one  inherent  m  themselves,  but  was  derived  from  the  Su- 
preme Court  through  the  legislative  assignments  of  the  Con- 
gress by  whose  acts  they  would  be  constituted  from  time  to 
time.  Under  such  assignments  there  must  have  been  either 
an  actual  or  a  constructive  delegation  of  parts  of  its  inher- 
ent jurisdiction  made  by  the  Supreme  Court  to  the  inferior 
courts  in  the  assigned  cases.  Appeals  to  the  Supreme  Court 
from  such  inferior  courts  must  have  been  actually  or  con- 
structively appeals,  that  were  made  to  a  delegating  tribunal 
from  delegate  tribunals  in  delegated  cases.  They  must  have 
been  appeals  to  a  court  of  native  or  inherent  jurisdiction 
from  courts  of  dative  or  non-inherent  jurisdiction. 

If  this  conclusion  be  correct,  the  jurisdiction  of  the  inferior 
courts  according  to  the  draft  differed  greatly  from  that 
which  they  have  always  exercised  under  the  constitution. 


358  HISTOKICAL   COMMENTARY. 

The  existing  inferior  courts  are  not  tribunals  of  delegated 
jurisdiction.  They  are  tribunals,  whose  jurisdiction  is  in- 
herent and  not  assigned. 

It  is  perfectly  true,  that  the  clause  under  consideration 
was  struck  out  of  the  draft  by  an  express  motion  of  August 
27th., "^  but  it  is  also  true  that  it  was  the  sole  text  mention- 
ing the  jurisdiction  of  the  inferior  courts  and  that  nothing 
whatsoever  was  substituted  in  its  place.  Thus  it  came  to 
pass  that  the  constitution  contains  no  text  mentioning  the 
jurisdiction  of  the  inferior  courts.  The  Committee  intended 
that  there  should  be  i^uch  text,  and  inserted  it  in  the  draft. 
The  convention  struck  out  that  text  and  omitted  to  insert 
another  on  the  same  subject. 

If  the  omission  of  such  a  text  was  an  error,  it  was  a  grave 
one,  for  it  must  make  much  difficulty  in  understanding  the 
judicial  part  of  the  frame  of  the  constitution  and  structure 
of  the  government.  If  no  such  error  was  committed,  such 
difficulty  may  not  exist.  But  error  or  no  error,  the  omis- 
sion was  actually  made. 

The  foregoing  conclusion  as  to  appeals  from  the  inferior 
U.  S.  courts  has  an  important  bearing  upon  the  subject  of 
appeals  from  the  state  courts.  The  appellate  jurisdiction 
clause  of  the  constitution  mentions  the  Supreme  Court  as  a 
tribunal  ad  quod,  but  does  not  mention  any  tribunals  a 
quibus.  The  corresponding  clause  of  the  draft  did  likewise, 
but  it  was  followed  by  a  context  relating  to  the  jurisdictions 
of  both  the  supreme  and  inferior  courts  and  the  relation  be- 
tween the  same.  This  context  is  expressive  of  so  peculiar 
a  dependency  of  the  inferior  courts  upon  the  Supreme  Court, 
that  their  not  being  designated  as  tribunals  a  quibus  in  any 
text  must  have  been  a  different  circumstance  according  to 
the  draft  from  what  it  was  and  is  under  the  constitution. 

When  this  context  was  stricken  from  the  draft,  the  state 
courts  and  the  inferior  courts  were  put  in  similar,  perhai3S 
in  identical,  predicaments,  as  to  any  consequences  resulting 
from  the  omission  to  mention  tribunals  a  quibus  in  the  ap- 
pellate jurisdiction  clause  of  the  new  constitution. 

The  constitution  was  reported  to  Congress  and  submitted 

*  Journal,  page  300,  line  11. 


HISTORICAL   COMMENTARY.  369 

by  it  to  the  several  states  for  ratification  or  rejection  by  their 
respective  popular  conventions.  Hovr  could  those  conven- 
tions understand  the  appellate  jurisdiction  clause  ?  They 
would  certainly  understand  it  to  refer  to  some  tribunals  a 
quihus.  In  the  subsequent  commentary  upon  the  text  of 
the  appellate  jurisdiction  clause,  it  will  be  contended  that 
it  would  be  natural  in  them  to  think  that  it  referred  to  the 
existing  state  courts,  as  well  as  to  the  future  inferior  courts, 
as  tribunals  a  quibus. 


(360) 


APPENDICES- 


APPENDIX  No.  1. 

(See  Page  5.) 


(This  appendix  was  not    sufficiently  completed  by  the 
author,  to  justify  its  publication.) 


APPENDIX  No.  2. 

(See  Page  123.) 

Sacrae  Rotae  Romanae   Decisionum  recentiorum  a  Paulo 
Rubeo  J.  C.  Romano  selectarum,  Pars  Decima.     Ab  Anno 
M.DC.XLYII.  usque  ad  totum  Annum  M.DC.XLIX." 
Venetiis,  M.DCC.XVI.  Apud    Paulum    Balleonium. 

Superiorum  permissu,  ac  privilegiis. 


Reverendiss.   P.  D.  Cerro,  Sacrae  Rotae  Decano.   Romana, 
seu  Januen.  Locorum  Montium.     Veneris  26,  Junii  1648. 


ARGUMENTUM. 

Conditum  in  Ecclesia  testamentum  subjaceat  ne  statuto  laico- 
rum  circa  solemnitates  illius.  Clerici  licet  possint  in  favor- 
abilibus  uti  statutis  laicorum,  in  lis  tamen,  quae  in  eisdem 
statutis  contra  libertatem  Ecclesiasti(;^j^  reperiuntur,  uti 
nuUo  modo  possunt  etiam  volentes.       _^^_^ 

(361) 


362  APPEITDICES. 

SUMMARIUM. 

1.  Testamentum  condltv.m  cum  soils  quinque  testihus  est 

nullum. 

2.  Teste  uno  deficiente  in  testamento  corruit  testamentum. 

3.  Immissio  concedltur  haeredi^  qui  exhihet  testamentum 

non  aholituriy  neque  in  aliqua  parte  cancellatum. 

4.  Statutum  potest  minuere  numerum  testium  in  testa- 

mento requisitum. 
Statutum  Januae  sub  rubr.    de  testamentis    solum 
numerum  quinque  testium  exposcit  in  illis,  num.  1^. 

5.  Testamentum    conditum    in    Ecclesia  subjaceat    ne 

statuto   laicorum    circa  numerum  testium^  &  num. 
seqq. 

6.  Statutum  requirens  majores  solemnitates,  qudrn  re- 

quirantur  dejure  cimliin  testamentis^  dicitur  odio- 
sum. 
Statutum  dicitur  favor  ah  lie,   si  solemnitates  juris 
civilis  in  testamento  diminuit,  num.  6. 

8.  Statutum  contra  libertaiem  Ecclesiastlcam  est  ipso  jure 

nullum,  &  num.  16. 

9.  Statutum  etiam  Clericis,  <&  JEcclesiae  favorahile,  con- 

ditum a  laicis  est  ipso  jure  nullum. 

10.  Statutum  laicale  ut  nullius  sit  rohoris,  &  momenti,  suffi- 

cit,  quod  etiam  mrtualiter,  &  indirect^     ericos  tan- 
gat,  &  laedat. 

11.  Laid  non  possunt  neque  directe,  neque  indirecil  de 

personis  Ecclesiastlcis,  eorumque  bonis  dlsponere. 

12.  Clerici  uti  possunt  per  modum  primlegli  statutls  lai- 

corum in  quantum  faciunt  pro  se  ipsis,  &  non  ac- 
ceptare  sed  reiicere  id,  quodfacit  contra  se. 

13.  Clericus  utens  statutis  laicorum,  cogitur  eis  uti  cum 

omnibus  suis  qualitatibus. 
Limita,  ut  num.  seqq. 
H.  Conditiones,  &  qualitates  ubi  sunt  diver sae,  &  separ- 

atae  ex  acceptatione  unius,  non  cogitur  quis  accep- 

tare  alias. 
17.  Clericus  lickt  acceptar  pos sit  statutum  in  favor abill  ^ 

bus,  quatenus  tamen  facit  contra  se,  etiam  volens 

acceptare  non  potest. 


APPENDICES.  363 

18.  Clerici  ahstinere  terieatwr  a  iiegotiis  laicorum. 

19.  Lfiici  statuere  nequeuiit  super  re  spirltualL. 

20.  Dlposltio  concernens  famrem  sahUis  aeternae^  &  aid- 

nae  sublevamentum^  dlcUur  ad  plas  causas. 

21.  Dlspositio  ad  plas  causas  substinatur  cum  solo  num- 

ero  duorum  testium. 


Decisio  CCXXXI. 

Inter  caetera  bona  haereditaria  q.  An  teniae  Spinolae  re- 
perta  fuerunt  quamplura  loca  Montium,  hodie  detenta  per 
D.  Franchum  Spinolam  illius  fratrem,  tanquam  ejus 
haeredem  ab  intestate:  Ide6  D.  Joannes  Baptista  de  Fran- 
chis  haeres  scriptus  in  testamento,  introducta  causa  coram 
me  petiit  super  immissionein,  quam  fore  denegandam  idem 
D.     Franchus  duplici  medio  tuebatur. 

Et  primo.  quia  testamentum  caret  legitime  numero  Testium 
tanquam  conditum  cum  solis  quinque  testibus,  lic^t  de  jure 
septera  omnino  requirantur,  §  flnal.  insUt.  de  testani.  it  aut 
uno  deficiente  testamentum  corruat,  I.  si  unus  C.  eodem. 

Secundo  quia  ex  Statute  Januae  in  rubric,  de  testam. 
&  uUim.  volufit.  lib.  I.  cap.  12  prehibetur  subditis  relin- 
quere  Sacerdetem  vel  Clericum  executerem  testamentarium, 
vel  fideicommissarium  sub  poena  quo  ad  hoc  nullitatis  testa- 
nienti,  unde  ciim  Jo:  Baptista  sit  Clericus,  testamentum 
quoad  ipsum  est  nullius  roboris. 

His  tamen  non  obstantibus  resolutum  fuit  eidem  dandam 
esse  immissionem,  quia  non  controvertitur  loca  Montium, 
de  quibus  agitur.  esse  haereditaria  Antonise,  &  exhibetur 
testamentum  non  abolitum,  neque  cancellatum,  nee  m 
aliqua  parte  suspectum,  juxta  dispositionem  I.  final.  O.  de 
edict.  Dio.  Adr.  toll. 

Primum  autem  objectum  visum  fuit  cessar^  ex  disposi- 
tione  ejusdem  Statuti  sub  eadem  rubr.  de  testam.  &  ultim. 
volunt.  qua  cavetur  testamentum,  sen  ultimam  voluntatem 
probatam  publico  Instrumento,  in  quo  descripti  sint  quin- 
que Testes  idonei,  firraam  esse,  &  validam.  Unde  dum 
in  Testamento,  de  quo  agitur,  quinque  Testes  fuerunt  adhi- 
biti,   prout    ibidem  disponitur,    utique  illius  validitas,  & 


364  APPENDICES. 

subsistentia  impugnari  non  valet,  cum  Statutum  possit 
minuere  numerum  testium  a  jure  requisitum,  ex  theor. 
Bartol.  in  leg.  cunotos  populos  nu.  21.  cum  seqq.  Cod.  de 
Sumrn.  Trinit.  quem  sequuti  f  aerunt  Angel,  consil.  233. 
num.  1  vers.  &  secundum  formam^  Yasquez  de  success. 
Great,  lib.  I.  tit.  de  testamen.  poten.  §  1.  num.  W.  firmans 
in  vers,  quid  dicendum,  hanc  sententiam  veriorem  esse, 
&  sequendam,  prout  etiam  aliis  relatis  comprobat  Crass. 
de  success.  §  tes lament um  qu.  55.  nam.  23,  &  firmavit 
Rota  in  Peruslaa  releviationis  testamenti  7.  Maii  1632 
corambon.  mem.  PirooaaOs  quae  est  decis.  126.  njun.  17. 
&  18.  part.  7.  recent. 

Nee  obstat,  quod  cum  I'uerit  conditum  inEcclesiaSocietn- 
tis  JESUS  a  jurisdictione  statuentium  exempta,  juvari  non 
possit  hujusmodi  statu taria  dispositione,  ut  fuit  dictum  ia 
Viterhien.  Haereditatis  4,  Martii  1641.  §  praetered,  &  28. 
Martii  1642.  §.  placuit  etiam  coram  R.  P.  D.  meo  Ghisl- 
lerio^  &  1.  Junii  16l3.  §  ex  altera  etiam  coram  R.  P.  D. 
meo  Yerospio. 

Hoc  enim  procederet,  si  ageretur  de  statu  to  odioso  re- 
quirente  majores  solemnitates,  quam  requirantur  de  jure 
Civili,  in  quibus  terminis  loquuntur  omnes  Auctoritates  in 
contrarium  allegatae,  &  ipsaemet  decisiones  i)i  dicUi 
Yiterbien.  Haereditatis.  Secus  autemubi  agitur,  pront  liic, 
de  statuto  favorabile,  ciim  ex  eo  minuantur  solemnitates 
juris,  ut  post  Bart,  in  d.  leg.  canctos  populos  n  23  k 
Bald,  in  I.  si  cam  speciali  sub  num.  5.  C.  de  testam.  re- 
spondit  Rota  in  Senen.  Sp'>llorum  5.  Janii  15  )5.  coram 
recol.  me  Oard.  Hieronymo  PampJiilio^  §.  non  obstal ; 
tunc  enim  si  nullam  mentionem  facit,  ut  in  j)roposito,  de 
Ecclesiis,  &  Ecclesiasticis  personis,  ipsem^t  Ecclesiae,  & 
ad  eas  recurrentes,  sive  in  ipsarum  Claustris  suas  ultimas 
voluntates  peragentes,  &  etiam  Clerici,  uti  possunt,  & 
juvantur  ejus  favorabili  dispositione  per  modum  privi- 
legii,  tanquam  mere  privilegiativa,  ut  probat  Abb.  iu  cap. 
BcclesiaSanctae  Mariaenum.'&l.  ibiqueFelin.  num.  81.  & 
Dec.  num.  276.  de  Qonstit.  Bald,  in  cap.  cum  venisset  nu. 
6.  vers,  oppono  extra  de  eo^  qui  mitt,  in  possess.  Bursatt. 
cons.    93.  num.    22.    lib.  I.  Sard.  coas.  301.  num.  24.    Car- 


APPEIS^DECES.  365 

pan.  in  praelud.  ad  Stat.  Mediol.  num.  612.  Capr.  concl. 
15.  nu.  32  &  33.  Alderan.  Mascard.  de  general,  slat,  inter - 
petr.  concl.  I.  num.  192.  cum  seqq.  Carol,  de  Grass,  de  ef- 
fect. Qler.  effect.  2.  num.  43.  Ciarlin.  contr,  for.  cap.  45. 
num.  b  k  Q.  Sperel.  dec.  for.  Eccles.  10.  num.  35.  Rot. 
dec.  438.  num.  7.  &  50.  par.  8.  recent.  &  in  aliis  relatis 
per  Add.  ad  sanct.  mem.  G-regor.  dec.  279.  n.  24.  idemque 
admisit  in  Senogallien.  Fructuum  Census  10.  Junii  1644. 
§.  denique  non  ohstat^  vers.  &  sic  supradicta  concluslo 
cor.  R.  P.  D.  meo  Gkisilerio. 

Corruit  pariter  secundum  objectum,  quia  cum  Statu tum 
in  ea  parte  adimit  Clericis  facultatem,  ipsis  competentem 
ex  dispositione  juris,  tam  civilis  in  leg.  Deo  nobis,  §.  hoc 
etiam  cognitum.  Cod.  de  Episc.  &  Cler.  quam  Canonici  in 
cap.  quia  nos^et  in  cap.  Joannes  de  testam.  &  loquuntur 
verbis  arctativis,  praescriptivis,  &  prohibitivis  directis  in 
personas,  expressam  mentionem  faciendo  de  Clericis,  ibi, 
Nullusque  Testator  possit  consiittiere,  vel  or  dinar  e  ali- 
quem  Clericum  conditionis  praefatae  fideicorrimissarium 
vel  executor  em  testamentarium,  &c. ,  tanquam  contra  liber- 
tatem  Ecclesiasticam  est  nullum  ipso  facto,  &  jure,  ex 
defectu  potestatis  Laicorum  statuentium,  ut  de  statu  to 
tollente  Clericis,  quod  ipsis  a  jure  conceditur,  decidit  text. 
in  cap.  eos  de  immun.  Eccles.  &  in  Auth.  cassa,  et  irrita, 
ubi  Bart.  Cod.  de  senient.  excomm.  Felin  in  diet,  cap, 
Eccles sia  S.  Mariae  num.  61.  de  Const.  Innoc.  in  cap. 
nomrit  de  sentent.  excomm  an.  Alex.  cons.  210.  n.  12.  lib. 
2.  Socc.  sen.  cons.  241.  num.  3.  libr.  3.  Riminal.  sen.  cons. 
483.  n.  10.  versic.  furtificantur  predicta  lib.  3.  Ancliar. 
cons.  61.  num.  2.  vers.  item,  si  Statutum.,  Rimin.  Jun. 
cons.  85.  num.  29.  lib,  1.  Ruin,  consil.  23.  nvm.  16. 
lib.  2.  Honded.  consil.  3.  n.  13.  cum.  seqq.  lib.  I.  Surd. 
cons.  2.  num.  22.  Carpan.  ubi  supra  num.  578.  num. 
583.  Marant.  disput.  8.  num.  2.  c&3.  Mart,  de  Jurisdict.  part. 
4  cent.  1.  cas.  5.  num.  43.  cas.  55.  num.  6.  &  7.  &cas.  62. 7ium. 
9.  Carol,  de  Grass,  d.  effect.  2.  num.  68.  Bellett.  disquis. 
Cler.  tit.  de  exempt.  Cleric,  a  stat.  saecul.  §  1.  num.  9.  De 
Statuto  praeceptivo,  arctativo,  &  prohibitivo  probant 
Imol.  in  cap.  constitutus  nu.  7.  de  restit.  in  integr.  Abb. 


Jf66  APPENDICES. 

in  cap.  a  nobis,  num^  1,  &  4.  cum.  seqq.  de  sentent.  ex- 
comm.  &  in  diet.  cap.  Ecclessia  8.  Mariae  num.  4.  Aiex. 
did.  cons.  210.  sub  num.  1.  in  fin.  ners.  sive  statutum  lib. 
2.  Bursatt.  d.  cons.  9'S.  nu.  45.  Honded.  d.  cons.  3.  num.  23. 
lib.  1.  &  cons.  20.  num.  18.  libr.  2.  Lap.  allegai.  101.  nu. 
14.  'ners.  quod  aut  sunt..,  Marant.  d.  disput.  8.  num.  8. 
usque  ad  12.  M2iTt.  d.  cent.  1.  cas.  21.  num.  11.  &  12. 
Sperell.  diet.  dec.  10.  7i2^.  20.  Et  denique  de  Statute  ex- 
pressam  mentionem  faciente  de  Clericis,  vel  Ecclesiis,  quan- 
tumvis  favorabile,  &  privilegiativo,  est  text,  apertus  in 
d.  cap.  Ecclesia  S.  Mariae,  ubi  Abb.  num.  5.  &  14.  in  fin. 
Felin.  num.  76.  aliique  scribent.  de  Const.  Bald,  in  d.  I. 
cunctos  populos  num.  10.  Cod.  de  Summ.    Trinit.  Bart,  in 

1.  fin.  num.  18.  C.  de  Sacrosanct.  Eccles.  Butr.  in  cap. 
quod  Clericus  defor.  compet.  Surdus  consil.  301.  num.  13. 
&  14.  Nevizan  consil.  39.  5Z^5  numer.  9.  ^er^.  5^6?  respon- 
detur,  Menoch.  de  recuperan.  remed.  14.  num.  56.  Gail. 
pract.  observat.  libr.  2.  observat.  32.  numer.  2.  cum  aliis 
pluribus  pleno  calamo  congestis  per  Carol,  de  Grass,  diet. 
effect.  2.  num.  45.  (&  46.  &  488.  &  489.  Bellett.  ^Z/ci^.  tit.  de 
exempt.  Cleric,  a  stat.  saecul.  %.  4,  num.  6.  Sperell.  diet, 
decis.  10.  num.  30.  cfe.  32. 

Idque  etiam  si  dicta  verba  activa,  &  prohibitiva  non 
videantur  directa  in  personas  Clericorura,  sed  tantummodo 
Testatoris  Laici :  Quia  praeterquod  satis  dicitur  contra 
libertatem  Ecclesiasticam,  dum  tollit  Clericis  beneficium 
ipsis  de  jure  competens,  vel  dum  de  eis  expressam  men- 
tionem facit,  exjuribus  allegatls,  sufficit  quod  virtualiter, 
&  indirecte  proMbendo  exequutoriam  in  personas  Clerico- 
rum  illos  tangat,  &  laedat,  ut  inde  nuUius  sit  roboris,  & 
firmitatis,  juxta  distinctionem  magistraliter  traditam  per 
Kim.  sen.  diet.  cons.  483.  num..  10.  r)ers.  &  bene  facit  lib.  3. 
Soccin.  jun.  cons.  1.  num.  11.  vers,  quoniam  licet  lib.  2. 
quam  egregie  expendit  Marant.  d.  disp.  8.  sub  num.  4A. 
vers.  ad.  septimum  respondeo,  sequitur  Mart,  ubi  supra  d. 
cent.  1.  d.  cas.  62.  num.  10.     Carol,  de  Grass,  diet,   effect. 

2.  nu.  11.  and  melius  omnium  Castropal.  ope7\  moral,  par. 
2.  tit.  de  rever.  deb.  Eccles.  disp.  unic.  punct.  8.  num.  7. 
Laici  enim  non  possunt  in  specie  statuere  de  personis  Eccle- 


APPETTDTCES.  367 

siasticis,  neque  de  ipsorum  bonis  directe,  aut  indirecte  cum 
illorum  jurisdictioni  non  subsint,  ut  articulo  mature  dis- 
cusso  responsum  f uit  m  Ha'Gennaten.  Jiaereditatis  5.  hujus 
coram  R.  P.  D.  meo  Otthohono^  &  signanter  in  §  cujus 
xerissima. 

Nee  ex  eo,  quod  Joann.  Baptista  utitur  dispositione 
hujus  statuti  in  ea  parte,  qua  mandat  validum  esse  testa- 
mentum  cum  quinque  Testibus,  intrat  obligatio  illud  ac- 
ceptandi  etiam  in  altera  parte,  qua  disponit  Clericos  non 
posse  constitui  fideicoraraissarios,  nee  executors  Testamen- 
tarios.  Quia  speciale  est  in  Ecclesiis,  &  personis  Ecclesi- 
asticis  posse  uti  per  modum  Privilegii,  Statutis,  &  Consti- 
tutionibus  Laicorum,  generalibus  tamen,  nullamque  men- 
tionem  de  ipsis  facientibus,  in  quantum  faciunt  pro  se  ipsis, 
&  concernunt  eorum  commodum,  &  favorem,  &  non  accep- 
tare,  sed  reiicere,  in  quantum  faciunt  contra  ipsos,  &  sunt 
eis  praejudiciales,  ut  notat  gloss,  in  cap.  nomt^  mrh. 
quicumque,  verslc.  quod  Ecclesia  dejudic.  Abb.  ifi  d.  cap 
constit.  num.  4.  de  integr.  resiit.  &  in  cap.  ex  litter  is 
nuTner.  6.  <&  7.  de  mt.  &  honest.  Cleric.  Soccin.  sen.  cons i I. 
71.  num.  19.  libr.  4.  Afflict,  dejure  prothom.  %.  9.  num. 
17.  P.  Diana  resol.  moral,  tr.  I.  de  immun.  Eccles.  resol. 
43.  per  tot.  torn.  3.  Mart,  ubi  supradict.  centur.  1.  cas.  5. 
num.  44.  &  45.  Bellet.  par  iter  ubi  supra  %.  2.  numer.  37. 

Minusve  applicatur  limitatio,  quod  Clericus  volens  uti 
hujusmodi  Statutis  cogatur  illis  uti  cum  omnibus  suis 
qualitatibus,  clausulis,  &  conditionibus,  ut  trad  it  Bald. 
in  I.  venditiones  num.  9.  C.  de  contrail,  ernpt.  <&  in  I. 
omni  novatione  sub  num.  9  C.  de  Sacros.  Eccles.  cum  aliis 
relatis  X)er  Tiraq.  de  retract,  lignag.  %.  1.  glos.  13.  num.  6. 
C&7. 

Quia  praeterquod  non  procedit  in  qualitatibus,  &  con- 
ditionibus diversis,  &  sex3aratis,  quarum  una  non  tendit 
ad  limitandum,  extendendum,  seu  qualificandum  alteram, 
ut  docte  consulendo  distinguit  Honded.  consil.  78.  n.  Ill 
cum  quatuor  seqq.  lib.  2.  Prout  in  effectu  sunt  in  casu 
nostro,  cum  Paragraph  us  minuens  numerum  testium  sit  om- 
nino  diversus,  &  separatus  a  Paragrapiio  j)rohibente  exe- 
cutoriam,  tam  respectu  materiae,  quarum  una  nihil  habet 


368  APPENDICES. 

commune  cum  altera,  quam  etiam  respectu  ordinis,  & 
scripturae,  ex  quo  licet  uterque  contineatur  sub  eadem 
rubrica,  Paragraph!  tamen  sunt  prorsus  separati,  &  unus 
valdd  distat  ab  alio  cum'  intermedio  aliorum  quatuordecim 
differentis  materiae  :  Admitti  potest  in  qualitatibus,  con- 
ditionibus,  seu  clausulis  validis,  justis,  &  subsistentibus, 
atque  generaliter  favorabilibus,  tam  Clericis,  quam  Laicis 
pro  communi  omnium  Civium  utilitate,  in  quibis  terminis 
loquuntur,  Bald,  loco  allegato^  caeterique  adducti  per  Tiraqu. 
ut  ipsemet  se  expUcat  sub  diet,  numer.  7.  vers,  neque  enim 
Mc  diutius^  idemque  probat  Seraph,  de  privil.  juram. 
pri'cil.  11.  num.  26.  ^cers.  sed,  eerie  Ms  non  ob stantibus. 
Secus  autem  quando,  prout  hie,  qualitas  statuti  est  nulla, 
injusta,  &  odiosa,  tendens  expresse  in  damnum,  &  odium 
Clericorum.  Ista  enim  tanquam  principaliter  contra 
libertatem  Ecclesiasticam,  &  expressam  mentionem  faciens 
de  Clericis,  habetur  perinde,  ac  si  facta,  &  apposita  non 
fuisset,  ut  ratiocinatur  Socc.  sen.  eons.  122.  sub  num.  6. 
vers,  seeunda^  quia  prima  pars  lib.  1.  Castro-psil.  ubi  supra 
par.  I.  tit.  de  leg.  in  commun.  &  ejus  caus.  tract.  3.  disp. 
I.  punct.  24.  §  6.  num.  1.  Carol,  de  Grass,  diet,  effect.  2. 
num.  28  vers,  tunc  enim ;  &  consequenter  acceptata  parte 
valida,  &  favorabili  tantum  abest,  quod  Clericus  uti  de- 
beat  dicta  parte  nulla,  &  odiosa,  quod  imo  etiam  volens 
ilia  uti  non  potest,  ut  concludit  Sperell.  dec.  11.  num.  30. 

Et  pro  justitia  resolutionis  duo  ulterius  Domini  ponder- 
abant :  Alterum,  quod  statutum  excludit  tantummodo 
Clericos  ab  executoria,  firmo  manente  in  reliquis  Testa- 
mento,  ideoque  extendi  non  debet  ad  casum  nostrum,  quo 
Jo  :  Baptista  fuit  haeres  institutus,  ne  alias  corruat  etiam 
ipsum  testamentum  contra  mentem  statuentium  :  Alterum, 
quod  ipsi  statuentes  intellexerunt  de  executore  dando  in 
prophanis,  ne  Clerici  se  immisceant  in  negotiis  Laicorum,  a 
quibus  etiam  de  jure  abstinere  tenentur,  ut  in  Gap.  I.  & 
per  tot.  88.  distinct.  &  in  cap.  te  quidem  11.  q.  I.  Non 
autem  de  executore,  prout  hie,  operis  pii,  &  relicto  pro 
exoneranda  conscientia  defuncti,  metiendo  voluntatem  a 
potestate,  cum  Laici  statuere  nequeant  super  re  spiritual!, 
cap.  tua  de  or  din.  cognat.  cap.  lator.,  qui  fil.  sint  legit. 


APPENDICES.  369 

Soccin.  sen.  consil.  35.  n.  I.  lib.  1.  Carol,  de  Grass,  alleg. 
effect.  2.  num.  81. 

Caeterum  dum  Antonia  Testatrix  haeredem  instituit  Joan. 
Baptistam  sub  fide,  quod  exoneraret  conscientiam  suam,  ut 
legitur  in  ipsomet  testamento,  ibi,  M  lia  eletto  la  persona 
di  d.  Sign.  Gio :  Battista^  perche  ^  certa,  die  per  V  at- 
tinenza  del  sangue^  e  grado^  cite  hd  di  Sacerdote,  userd 
ogni  diligenza.,  accid  la  coscienza  di  d.  Testatrice.,  delta 
quale  I  in  questa  parte  intieramente  informato^  resti 
pienamente  sodisfatta :  Censetur  principaliter  contem- 
plasse  favorem  salutis  aeternae,  &  animae  sublevamen- 
tum,  proindeq  ;  dispositio  dicitur  ad  pias  causas,  ex  theor. 
Bald,  in  auth.  similiter  n.  2.  vers.  &  dicitur,  C.  ad.  /ale, 
Bart,  in  repetit.  lib.  I.  num  33.  C.  de  Sacros.  Eccles, 
Florian.  de  S.  Petr.  in  I.  cum  quidam,  §  dies  n.  2.  vers. 
dicitur  autem,  ff.  de  usur.  Ang.  in  I  precihus  num.  5.  vers, 
idem,  C.  de  impub.  &  aliis  subst.  bene  Jas.  cons.  110. 
num,  7.  lib.  I.  Crot.  cons.  194.  num.  4.  lib.  2.  Jo :  Bap- 
tista  de  thor.  in  addit.  ad  Tiraquell.  de  privil.  pine  caus.  in 
praefat.  vers,  item  relictum  pro  incertis  cum  seqq.  Rot. 
dec.  245,  num.  29.  part.  7.  recent.  Quae  substinetur  cum 
duobus  solis  Testibus,  cap.  relatum  de  testam.  Rot.  divers, 
decis.  74.  num.  12.  cum  seqq.  part  2. 

Et  ita  conclusum  utraque  parte  informante^  &c. 


APPENDIX  No.  3. 

(See  Page  206.) 

Opinion  of  Chas.  R.  Hildeburn,  Esq.,  upon  the  question 
whether  the  lower  counties  ujjon  Delaware  were  a  transmit- 
ting or  a  non-transmitting  colony. 

Tlie  Historical  Society  of  Pennsylvania. 

1300  Locust  Steeet, 
Philadelphia,  February  25th,  1892. 
Dear  Sir  :     In  reply  to  your  question  as  to  whether  the 
acts  passed  by  the  Assembly  of  the  Government  of  New- 
24  C. 


370  APPENDICES. 

castle,  Kent  and  Sussex  upon  Delaware,  commonly  called 
the  Three  Lower  Counties  of  Pennsylvania,  were  ever 
transmitted  to  England  for  approval  or  disallowance  by  the 
Crown,  I  think  I  am  justified  in  answering  in  the  negative. 

The  Public  Record  office  in  London  contains  more  or  less 
complete  manuscript  series  of  the  acts  passed  by  the 
"transmitting  colonies,"  and  much  matter  concerning  their 
consideration  and  the  action  taken  upon  them  by  the  Crown. 

But  there  is  no  evidence  to  be  found  in  that  office  that 
the  acts  of  this  Assembly  were  ever  transmitted  or  con- 
sidered. And  the  notes  of  the  Crown's  action,  which  are 
to  be  found  in  almost  all  the  printed  collections  of  acts  of 
the  transmitting  colonies,  are  entirely  absent  from  all  the 
editions  of  the  "Laws  of  the  Government  of  Newcastle, 
Kent  and  Sussex  upon  Delaware." 

Yours  very  truly, 
(Signed)  Chas.  R.  Hildeburn. 

Brikton  Coxe,  Esq. 


APPENDIX  No.  4. 

(See  Page  213.) 

Order  of  the  King  in  Council,  upon  the  appeal  of  John 
Winthrop  against  Thomas  Lechmere,  annulling  the  Law  of 
Connecticut,  entitled  ' '  An  act  for  the  settlement  of  Intes- 
tate Estates." 

At  the  Court  at  St.  James' s,  the  15th  day  of  February, 
1727. 

[L.  S.] 

Present : 

The  King' s  Most  Excellent  Majesty, 

Lord  President, 

Lord  Privy  Seale, 

Lord  Steward, 

Lord  Chamberlain, 

Duke  of  Ancaster, 

Duke  of  Newcastle, 


APPENDICES.  371 

Earl  of  Lincoln, 

Earl  of  Westmoreland, 

Earl  of  Berkeley, 

Earl  of  Scarborough, 

Earl  of  Loudoun, 

Earl  of  Uxbridge, 

Earl  of  Sussex, 

Viscot.  Cobham, 

Yiscot.  Torrington, 

Lord  Berkeley  of  Stratton, 

Lieut.  Genera]  Wills, 

Sr.  Robert  Sutton. 

Upon  reading  this  day  at  the  Board  a  report  from  the 
Rt.  Honorable  the  Lords  of  the  Committee  for  hearing  Ap- 
peals from  the  Plantations,  dated  the  20th  day  of  Decem- 
ber last,  in  the  words  following,  viz  : 

In  obedience  to  an  Order  in  Council  of  the  13th  of  May 
last  referring  to  this  committee  the  humble  petition  and 
appeal  of  John  Winthrop,  of  New  London,  in  his  Majesty's 
Colony  of  Connecticut,  Esq.,  only  son  and  heir  at  law  of 
Major  General  Waite  Winthrop,  of  Boston  in  New  England, 
Esq.,  his  late  father,  deceased  (to  which  appeal  the  pe- 
titioner was  admitted  by  his  late  Majesty's  Order  in  Coun- 
cil of  the  28th  of  March  last),  their  Lordships  this  day 
took  the  said  petition  into  consideration ;  which  said  pe- 
tition sets  forth  (amongst  other  things),  the  charter  of  in- 
corporation granted  to  the  said  Province  by  King  Charles 
the  second,  on  the  13th  of  April,  in  the  fourteenth  year  of 
his  reign,  by  which  the  lands  of  the  said  Colony  are  held  of 
the  Crown,  as  of  the  manor  of  East  Greenwich  in  Kent,  in 
free  and  common  soccage,  and  the  laws  which  they  are  em- 
powered to  make  are  to  be  wholesome  and  reasonable,  and 
not  contrary  to  the  law  of  England  ;  and  that  the  petitioner 
was  possessed  of  and  entitled  to  a  very  considerable  real  es- 
tate in  the  said  Province,  as  heir  at  law  to  his  said  father 
Waite  Winthrop,  and  his  uncle  the  Honourable  Fitz  John 
Winthrop,  both  deceased :  That  his  said  father  Waite  Win- 
throp dyed  intestate,  leaving  issue  only  the  petitioner  and 
one  daughter,  Anne,  who  was  preferred  in  marriage  in  her 


372  APPENDICES. 

father's  life  time  to  Thomas  Lechmere,  of  Boston  afore- 
said, merchant;  and  that  on  his  said  father's  death  he  be- 
came entituled  to  all  his  real  estate  whereof  he  dyed  seized  in 
fee,  as  his  heir  at  law ;  and  that  on  the  21st  of  February, 
171|,  at  the  court  of  probates  held  for  the  county  of  New 
London  in  Connecticut,  letters  of  administration  were 
granted  to  the  petitioner  of  the  goods,  chattels,  rights  and 
credits  of  his  said  father,  and  he  entered  into  bond  to  the 
judge  of  the  said  court  of  probates  in  3,000  Z.  penalty, 
with  condition  for  his  making  a  true  inventory  of  all  and 
singular  the  goods,  chattels  and  credits  of  the  said  de- 
ceased, and  exhibit  the  same  into  the  registry  of  the  said 
court  of  probates,  and  truly  to  administer  the  same  ac- 
cording to  law.  But  the  petitioner  having  paid  and  ad- 
vanced more  to  and  for  and  on  account  of  the  said  Thomas 
Lechmere  than  the  said  Anne  his  wife's  share  of  the  said 
intestate's  personal  estate  come  to  the  petitioner's  hands 
amounted  to,  and  the  said  Thomas  and  Anne  Lechmere  hav- 
ing possessed  most  part  of  the  said  Waite  Winthrop's  per- 
sonal estate,  and  not  having  required  the  petitioner  to  ex- 
hibit any  inventory  or  account  of  his  administration,  and 
the  petitioner  having  discharged  all  his  said  father' s  debts, 
save  o^  dy  one  bond  for  300  I.  on  which  he  duly  discharged 
all  interest,  and  would  have  paid  off  the  principal  but  the 
obligee  declined  accepting  the  same,  the  petitioner  did  not, 
for  these  reasons,  think  it  necessary  to  exhibit  any  inven- 
tory or  account  of  his  said  administration.  But,  in  order 
to  ruin  and  oppress  the  petitioner,  six  years  after  the  said 
letters  of  administration  so  granted  to  the  petitioner  (viz)  ; 
in  July,  1724,  the  said  Thomas  Lechmere  applied  to  the 
court  of  probates,  insisting  he  was,  in  right  of  his  wife,  en- 
titled to  a  proportion  of  the  said  Waite  Winthrop's  real  es- 
tate, but  that  he  was  kept  thereout  by  the  petitioner's  not 
having  inventoried  and  administred  the  same,  and  caused  the 
petitioner  to  be  summoned  by  the  court  of  probates,  to 
show  cause  why  he  neglected  to  inventory  the  intestate's 
estate  and  finish  his  administration  according  to  his  bond  ; 
upon  which  the  petitioner  exhibited  an  inventory  of  the 
said  1  intestate's  personal  estate  in  the  said  court  of  pro- 


APPENDICES.  [  373 

bates,  and  the  petitioner  at  the  foot  thereof  insisted,  ad- 
ministrators had  nothing  to  do  with  lands,  they  belonging 
to  the  heir  at  law,  and  that  he  was  in  possession  thereof  as 
his  right  of  inheritance  according  to  the  law  of  England, 
and  therefore  he  was  not  obliged  to  exhibit  any  account  of 
the  real  estate,  that  not  being  cognizable  by  a  Court  of  Pro- 
bates, and  which  inventory  the  petitioner  prayed  might  be 
accepted  and  recorded  ;  but  the  court  declared  they  were 
satisf yed  the  same  was  not  a  true  and  perfect  inventory  of 
all  the  said  intestate's  estate  within  that  county,  and  that 
the  petitioner's  objections  were  against  law,  and  decreed 
that  the  said  inventory  should  not  be  admitted,  and  refused 
to  accept  it  as  such  an  inventory  of  the  intestate's  estate  as 
ought  to  be  exhibited  ;  and  the  said  Thomas  Lechmere  in 
the  same  July  put  the  petitioner's  said  administration  bond 
in  suit  against  him,  and  at  the  same  time,  in  his  own  name 
and  the  name  of  Abel  Wally,  brought  another  action 
against  the  petitioner,  as  they  had  been  sureties  for  him  in 
an  administration  bond  for  his  duly  administring  the  in- 
testate's estate,  in  the  county  of  Suffolk  in  the  Massa- 
chusetts Bay,  alledging  such  administration  bond  had  been 
sued  and  recovered  from  them,  on  account  of  the  petition- 
er's not  having  exhibited  an  inventory  or  brought  in  his  ad- 
ministration accounts  ;  and  the  said  Thomas  Lechmere  also, 
at  the  same  time  brought  four  several  writs  of  partition  in 
his  own  name  and  in  the  name  of  his  wife  Anne,  stiling  her 
only  daughter  and  co-heir  of  the  said  Wait.e  Winthrop,  to 
recover  from  the  petitioner  one-third  of  the  real  estate  in 
said  writs  mentioned,  insisting  the  said  Anne  was  co-heir 
thereto  with  the  petitioner,  and  as  such,  by  the  law  of  the 
Province,  she  was  entituled  to  one-third  of  the  said  real  es- 
tate ;  and  that  on  full  and  fair  hearings,  the  final  judg- 
ments in  all  the  said  six  actions  were  given  for  the  pe- 
titioner. 

That  it  thus  appearing  the  petitioner's  inheritance  could 
not  be  split  and  tore  to  pieces  by  the  common  ordinary 
means  of  justice,  as  the  law  was  then  understood,  some 
more  irresistable  way  was  to  be  found  out  to  oppress  the 
petitioner ;  and  for  that  purpose  the  said  Thomas  Lechmer-e 


374  APPENDICES. 

preferred  a  petition  to  the  General  Assembly,  in  1725,  in 
the  name  of  himself  and  his  wife,  setting  forth  the  said 
several  judgments  given  against  him,  and  that  they  were 
never  likely  to  recover  of  the  petitioner  one-third  of  the  said 
real  estate,  though  the  same  descended,  as  they  alledged, 
to  the  said  Anne  and  the  petitioner  as  co-heirs  of  their 
father  without  the  aid  and  relief  of  that  Assembly,  and  that, 
either  by  reason  of  the  insufficiency  of  the  diction  of  the 
law  of  the  Colony  already  made,  or  by  the  court's  sense  or 
exposition  thereof  ;  for  they  had  no  remedy  by  the  common 
law,  as  appeared  by  the  said  judgments  against  them,  nor 
could  have  any  remedy  by  the  court  of  probates,  for  that 
the  petitioner  refused  to  inventory  the  real  estates ;  and,  as 
the  law  of  the  Colony  had  given  them  a  right  to  one-third 
the  premises,  it  was  not  consistent  with  the  honour  of  the 
Colony,  but  that  the  government  would  afford  some  indis- 
putable method  for  their  better  obtaining  their  said  right ; 
and  to  that  end  they  prayed  the  Assembly  to  set  aside  the 
said  judgments  and  to  grant  a  new  tryal,  wherein  they 
might,  notwithstanding  the  exposition  of  the  superiour  court 
upon  the  law^,  well  support  their  said  actions  of  partition, 
which  petition,  tho'  of  so  very  extraordinary  nature,  the 
Assembly  received  and  ordered  the  petitioner  to  attend  to 
answer  the  same.  That  the  petitioner  put  in  his  answer, 
insisting  there  was  nothing  contained  in  the  said  petition 
that  called  for  the  interposition  of  the  Assembly,  or  in 
which  they  ought  or  could  give  any  relief,  notwithstanding 
which,  and  without  any  hearing,  the  Assembly  resolved 
that  relief  might  and  ought  to  be  had  in  the  probates  in 
such  like  cases  by  a  new  grant  of  administration,  exhibit- 
ing an  inventory  of  the  whole  estate,  and  a  distribution 
made  according  to  the  rules  of  law  upon  the  whole ,  and 
at  the  same  time,  tho'  they  came  to  this  resolve,  they 
dismissed  the  said  Lechmere's  petition. 

That  the  petitioner,  by  this  very  extraordinary  resolve 
finding  the  danger  he  was  in,  again  exhibited  to  the  court 
of  probates  a  full  and  true  inventory  of  his  father's  personal 
estate  come  to  his  hands,  valued  and  appraised,  and  again 
insisted  in  writing  at  the  foot  thereof,  that  administrators 


APPENDICES.  375 

had  nothing  to  do  with  lands,  they  belonging  to  him  as  heir 
at  law  and  as  his  right  of  inheritance  according  to  the  law 
of  England,  and  that  no  real  estate  ought  by  law  to  be  ex- 
hibited not  cognizable  by  a  court  of  probates  ;  and  the  peti- 
tioner moved  the  court  to  have  the  same  accepted  as  a  full 
inventory  of  all  the  intestate's  estate  within  that  Colony 
proper  for  a  court  of  probates  by  law  to  demand,  and  of- 
fered his  oath  that  it  was  the  whole  personal  estate  of  the 
deceased.  But  the  court  insisting  on  the  petitioner's  tak- 
ing an  oath  that  it  was  an  inventory  of  the  whole  of  the  in- 
testate's  real  as  well  as  personal  estate,  which  the  petitioner 
refused  to  comply  with,  insisting  he  ought  not  to  inventory 
any  real  estate.  Whereupon  the  said  court,  by  their  sen- 
tence of  the  29th  of  June,  1725,  rejected  the  said  inventory 
and  refused  to  accept  the  same,  from  which  sentence  of  de- 
ny al  the  petitioner  appealed  to  the  superior  court.  That 
after  the  said  appeal,  and  before  it  came  on  to  be  determined, 
the  said  Lechmere  commenced  a  suit  in  the  court  of  pro- 
bates to  have  administration  granted  to  him  of  the  said  in- 
testate' s  estate  ;  and  the  petitioner  being  summoned  to  show 
cause  why  administration  should  not  be  granted  to  the  said 
Lechmere,  for  cause  insisted  on  his  said  appeal  being  de- 
pending, and  which  cause  the  said  court  allowed,  from 
which  allowance  the  said  Lechmere  also  appealed  to  the 
said  superior  court. 

That  on  the  28th  September,  1725,  the  superior  court,  on 
hearing  the  petitioner's  appeal,  declared  that  they  were  of 
opinion  that  real  as  well  as  personal  estate  were  ordered  to 
be  inventoried  by  the  law  of  that  Colony,  and  that  all 
courts  of  probates  ought  to  be  guided  in  their  administra- 
tions thereby,  notwithstanding  the  laws  of  England  do  not 
ordain  that  real  estates  should  be  inventoried  ;  and  there- 
upon ordered  that  the  petitioner  should  not  be  admitted  to 
evidence  to  the  said  inventory  by  any  other  oath  than  that 
which  was  agreeable  to  the  laws  of  the  Province ;  and  af- 
firmed the  judgment  of  the  court  of  probates,  and  con- 
demned the  petitioner  in  costs  ;  from  which  judgment  the 
petitioner  prayed,  and  was  allowed,  a  review  to  the  next  su- 
perior court.     And  the  said  Lechmere' s  appeal  coming  on 


376  APPENDICES. 

at  the  same  time,  the  court  also  in  that  suit  affirmed  the 
judgment  of  the  court  of  probates ;  from  which  sentence 
the  said  Lechmere  prayed,  and  was  allowed,  a  review  like- 
wise. 

That,  on  hearing  the  petitioner's  said  appeal  on  the  re- 
view, on  the  22d  of  March,  172|,  the  court  ctffirmed  their 
said  former  judgment  and  condemned  the  petitioner  in 
costs  ;  and  on  the  said  Lechmere' s  review,  which  came  on 
at  the  same  time,  the  said  suparior  court,  forasmuch  as 
the  petitioner' s  said  appeal  was  then  determined,  adjudged 
that  the  said  letters  of  administration  formerly  granted  the 
petitioner  should  be  vacated,  and  the  same  was  thereby  va- 
cated, and  that  the  said  Thomas  Lechmere  and  Anne  his 
wife,  should  have  administration  on  the  deceased's  estate  ; 
and  the  said  superior  court  thereby  granted  power  of  ad- 
ministration to  the  said  Thomas  and  Anne  Lechmere  on  the 
said  intestate's  estate,  and  condemned  the  petitioner  in 
costs  ;  from  both  which  judgments  of  the  superior  court 
the  petitioner  prayed,  but  was  in  a  very  extraordinary  man- 
ner denyed,  an  appeal  to  his  late  Majesty  in  Council ;  but 
which  appeal  he  was  admitted  to,  upon  his  petition  to  his 
late  Majesty. 

That  the  petitioner,  finding  his  inheritance  in  this  immi- 
nent danger  of  being  torn  in  pieces,  all  application  for  re- 
lief to  his  Majesty  being  denyed  him :  to  prevent,  if  pos- 
sible, anything  being  done  in  the  premises  till  he  could  lay 
his  case  before  his  Majesty,  entered  and  filed  his  protest,  as 
heir  at  law  to  his  father,  against  granting  letters  of  admin- 
istration to  his  father's  estate  to  any  other  person  whatever, 
the  court  having  before  lodged  that  power  with  the  pe- 
titioner, and  also  against  any  division  of  any  real  estate 
pretended  to  belong  to  the  petitioner's  father,  all  such  real 
estate  being  the  petitioner's  undoubted, right  of  inherit- 
ance, who  was  seized  and  possessed  of  the  same  according 
to  the  laws  of  England,  and  which  he  was  entituled  to  under 
the  charter  of  the  said  Province,  and,  therefore,  the  pe- 
titioner protested  against  any  proceedings  of  the  said  court 
contrary  to  the  law  of  England :  Notwithstanding  which, 
the  judges  of  the  said  superior  court  the  same  22d   of 


APPENDICES.  377 

March,  granted  letters  of  administration  to  the  said  intes- 
tate's estate  to  the  said  Thomas  Lechmere  and  Anne,  his 
wife,  and  took  the  usual  administration  bond  from  the  said 
Thomas  Lechmere  and  his  sureties,  which  letters  of  admin- 
istration and  bond  extend  only  to  the  goods,  chattels, 
rights  and  credits  of  the  deceased,  which  the  petitioner  had 
before  duly  administred. 

That  the  said  Thomas  Lechmere  under  colour  hereof,  in- 
ventoried and  appraised  all  the  petitioner' s  real  estate,  and 
exhibited  an  inventory  thereof  before  a  special  superior 
county  court  held  for  that  purpose  on  the  29th  of  April, 
1726,  which  the  said  court,  notwithstanding  the  said  Lech- 
mere, either  by  his  letters  of  administration  or  his  admin- 
istration bond,  had  nothing  to  do  with  real  estates,  took 
upon  them,  contrary  to  law,  to  sit  specially  and  receive  the 
said  inventory,  and  by  their  acts  of  that  date  approved  the 
same,  and  ordered  it  to  be  received  ;  and  the  said  Lechmere 
also  then  exhibited  to  the  court  an  account  of  381.  7s.  ^d. 
for  charges  and  time  spent  in  the  administration,  and  of  a 
debt  due  to  Robert  Lattimore  for  318Z.  silver  money,  which 
was  the  bond  the  petitioner  had  offered  to  discharge  as 
aforesaid,  and  for  which  he  had  duly  paid  interest ;  which 
account  the  said  court  also  allowed  and  ordered  to  be  kept 
on  fyle  ;  and  the  12th  of  May,  1726,  the  said  Lechmere  (be- 
ing conscious  he  had  no  power  over  any  real  estate  by  vir- 
tue of  the  administration)  petitioned  the  Assembly,  setting 
forth  that  no  personal  estate  of  the  intestate  had  come  to 
his  hands,  the  estate  come  to  his  hands  being  all  real, 
and  finding  there  was  due  from  the  said  estate  856Z.  Is.  4d.^ 
being  the  two  sums  in  his  above  account  mentioned,  and  no 
moveables  to  pay  the  same,  he  prayed  the  Assembly  to  en- 
able him  to  pay  the  said  debts  by  ordering  him  to  sell  and 
dispose  of  so  much  of  the  said  lands,  thereby  to  defray  the 
said  debts  with  other  necessary  charges. 

That  the  petitioner  being  informed  of  this  application, 
that  the  Assembly  might  do  nothing  herein  without  the 
fullest  notice  possible,  the  petitioner  presented  a  memo- 
rial to  the  Grovemor  and  Company,  agreeing  in  substance 
with  the  above  recited  protest,  and  declaring  that  he,  being 


878  APPEl^DICES. 

aggrieved  with,  the  aforementioned  proceedings,  should  lay 
the  whole  by  appeal  before  his  Majesty.  But  which  re- 
monstrance of  the  petitioner  the  Assembly  the  same  day 
dismissed,  and  immediately  afterward,  on  the  said  Lech- 
mere's  petition,  granted  him  a  power  to  sell  the  said  lands, 
and  ordered  that  a  bill  should  be  brought  in  for  that  end  in 
form  ;  whereupon  the  petitioner  entered  and  fyled  his  pro- 
test with  the  said  Governor  and  Company,  to  the  effect 
with  that  before  mentioned,  and  further  protesting  against 
their  proceeding  to  grant  power  to  any  pretended  adminis- 
trator to  sell  any  part  of  the  petitioner's  real  estate  under 
colour  of  debts  due  from  the  said  deceased,  as  they  would 
answer  the  same  before  his  Majesty  in  Council,  which  pro- 
test, the  Assembly  declared,  had  in  it  a  show  of  contemjDt  to 
the  Governor  and  Assembly  and  the  authority  there  estab- 
lished, and,  therefore,  on  the  2oth  of  the  same  May,  they 
ordered  the  sheriff  to  bring  the  petitioner  to  the  bar  of  the 
said  Assembly  to  answer  for  the  contempt  manifested  in 
the  said  protest,  and  immediately  afterwards  passed  an  act 
empowering  the  said  Thomas  Lechmere  to  sell  so  much  of 
the  said  lands  as  might  be  sufficient  to  discharge  the  said 
debts  and  the  necessary  costs,  the  said  Lechmere  taking  the 
advice  of  the  superior  court  in  such  sale,  and  enacting 
such  deed  or  deeds  of  sale  to  be  good. 

That  the  petitioner  humbly  lays  the  whole  of  these  pro- 
ceedings before  his  Majesty,  by  which  the  many  extraordi- 
nary and  unjustifiable  steps  may  appear  to  have  been  taken 
against  him,  in  order  to  disinherit  him  of  his  inheritance, 
and  to  set  up  his  sister  as  co-heir  with  him,  and  to  make  a 
division  of  his  real  estate  between  him  and  his  sister,  con- 
trary to  the  common  law  of  England  and  the  royal  charter 
of  the  said  Province  ;  and,  in  consideration  thereof,  and  of 
the  many  hardships  of  the  petitioner's  case,  the  petitioner 
humbly  prays  his  Majesty  to  reverse  the  said  two  sentences 
of  the  superior  court  of  the  22d  of  March,  172|,  with 
costs  and  damages  to  the  petitioner,  and  to  order  the  said 
administration,  so  illegally  and  irregularly  granted  to  the 
said  Thomas  and  Anne  Lechmere,  to  be  called  in  ;  and  also 
to  set  aside  and    discharge    all    subsequent   proceedings 


APPENDICES  379 

grounded  thereon  ;  and  that  his  Majesty  would  repeal  the 
said  act  passed  by  the  Assembly  empowering  the  said 
Thomas  Lechmere  to  sell  and  dispose  of  the  petitioner's 
said  real  estate  ;  and  that  his  Majesty  would  be  pleased  to 
grant  him  all  such  further  and  other  relief  as  the  circum- 
stances and  nature  of  his  case  should  require. 

Their  Lordships  having  heard  all  parties  concerned,  by 
their  counsel  learned  in  the  law,  on  the  said  petition  and 
appeal,  and  there  being  laid  before  their  Lordships  an  act 
passed  by  the  Governor  and  Company  of  that  Colony,  enti- 
tuled  an  act  for  the  settlement  of  intestate  estates,  by  which 
act  (amongst  other  things)  administrators  of  persons  dying- 
intestate  are  directed  to  inventory  all  the  estate,  whatso- 
ever, of  the  persons  so  deceased,  as  well  moveable  as  not 
moveable,  and  to  deliver  the  same  upon  oath  to  the  court  of 
probates  ;  and  by  the  said  act  (debts,  funerals  and  just  ex- 
penses of  all  sorts,  and  the  dower  of  the  wife  (if  any)  being 
first  allowed)  the  said  court  of  probates  is  empowered  to 
distribute  all  the  remaining  estate  of  any  such  intestate,  as 
well  real  as  personal,  by  equal  portions,  to  and  amongst  the 
children  and  such  as  legally  represent  them,  except  the  eld- 
est son  who  is  to  have  two  shares  or  a  double  portion  of  the 
whole  ;  the  division  of  the  estate  to  be  made  by  three  suf- 
ficient freeholders,  on  oath,  or  any  two  of  them,  to  be  ap- 
l)olnted  by  the  court  of  j)robates.  Their  Lordships,  upon 
due  consideration  of  the  whole  matter,  do  agree  humbly  to 
report  as  their  opinion  to  your  Majesty,  that  the  said  act 
for  the  settlement  of  intestate  estates  should  be  declared 
null  and  void,  being  contrary  to  the  laws  of  England,  in 
regard  it  makes  lands  of  inheritance  distributable  as  per- 
sonal estates  and  is  not  warranted  by  the  charter  of  that 
Colony  ;  and  that  the  said  three  sentences  of  the  29th  of 
June,  1725,  of  the  28th  of  September,  J  725,  and  of  the  22d 
day  of  March,  172|,  rejecting  the  inventory  of  the  said 
intestate's  estates  exhibited  by  the  petitioner,  and  refusing 
to  accept  the  same,  because  it  did  not  contain  the  real  as 
well  as  personal  estate  of  the  said  intestate,  and  declaring 
real  as  well  as  personal  estates  ought  to  be  inventoried,  may 
be  all  reversed  and  set  aside  ;  and  that  the  petitioner  be  ad- 


380  APPENDICES. 

mitted  to  exhibit  an  inventory  of  the  personal  estate  only 
of  the  said  intestate ;  and  that  the  court  of  probates  be  di- 
rected not  to  reject  such  inventory,  only  because  it  does 
not  contain  the  real  estate  of  the  said  intestate  ;  and  that 
the  said  sentence  of  the  22d  of  March,  i72|,  vacating  the 
said  letters  of  administration  granted  to  the  petitioner,  and 
granting  administration  to  the  said  Thomas  and  Anne  Lech- 
mere,  should  be  also  reversed  and  set  aside ;  and  that  the 
said  letters  of  administration,  so  granted  to  the  said  Thomas 
Lechmere  and  Anne,  his  wife,  should  be  called  in  and 
vacated  ;  and  that  the  said  inventory  of  the  said  real  estate 
exhibited  by  the  said  Thomas  Lechmere  and  Anne,  his  wife, 
should  be  vacated  ;  and  that  the  order  of  the  29th  of  April, 
1726,  approving  of  the  said  inventory  and  ordering  the  same 
to  be  recorded,  should  be  discharged  and  set  aside ;  and 
that  the  original  letters  of  administration  granted  to  the 
petitioner  should  be  established  and  ordered  to  stand  ;  and 
that  all  such  costs  as  the  petitioner  hath  paid  unto  the  said 
Thomas  Lechmere,  by  direction  of  the  said  sentence,  may 
be  forthwith  repaid  him  by  the  said  Thomas  Lechmere  ;  and 
that  the  suit  brought  by  the  said  Lechmere  and  his  wife, 
on  which  the  said  sentence  was  made,  may  be  dismissed, 
and  that  all  acts  and  proceedings  done  and  had  under  the 
said  sentences,  or  any  of  them,  or  by  virtue  or  pretence 
thereof,  may  be  discharged  and  declared  null  and  void  ; 
and  also  that  the  said  act  of  Assembly,  passed  in  May,  1726, 
empowering  the  said  Lechmere  to  sell  the  said  lands,  should 
be  declared  null  and  void.  And  it  appearing  to  their  lord- 
shijjs  that  the  said  superior  court,  by  an  order  bearing  date 
the  27th  of  September,  1726,  and  made  pursuant  to  the  said 
act  of  Assembly,  allowed  the  said  Thomas  Lechmere  to  sell 
of  the  said  rear  estate  to  the  value  of  ninety  pounds  cur- 
rent money  there,  for  his  charges,  and  three  hundred  and 
eighteen  pounds  silver  money,  to  answer  the  said  bond  debt 
due  from  the  intestate,  their  lordships  are  of  the  opinion 
that  the  said  order  of  the  superior  court  should  be  declared 
null  and  void  ;  and  also  that  the  petitioner  should  be  imme- 
diately restored  and  put  into  the  full  and  quiet  possession 
of  all  such  parts  of  the  said  real  estate   as  may  have  been 


APPENDICES.  381 

taken  from  him,  under  pretence  of,  or  by  virtue  or  colour 
of  the  said  sentences,  orders,  acts  and  proceedings,  or  any 
of  them  ;  and  that  the  said  Thomas  Lechmere  do  account 
for  and  pay  to  the  said  petitioner  the  rents  and  profits 
thereof  received  by  him  or  any  one  under  him,  for  and  dur- 
ing the  time  of  such  his  unjust  detention  thereof. 

His  Majesty,  taking  the  same  into  his  royal  consideration, 
is  pleased,  with  the  advice  of  his  privy  council,  to  approve 
of  the  said  report,  and  confirm  the  same  in  every  particular 
part  thereof  ;  and  pursuant  thereunto,  to  declare,  that  the 
aforementioned  act,  entituled  an  act  for  the  settlement  of 
intestate  estates,  is  ]Null  and  Void  ;  and  the  same  is  hereby 
accordingly  declared  to  be  null  and  void,  and  of  no  force 
or  effect  whatever.  And  his  Majesty  is  hereby  further 
pleased  to  order,  that  all  the  aforementioned  sentences  of 
the  29th  June,  1725,  of  the  28th  of  September,  1725,  and  of 
the  22d  March,  172f,  and  every  of  them,  be  and  they  are 
hereby  reversed  and  set  aside  ;  and  that  the  petitioner, 
John  Winthrop,  be,  and  is  hereby,  admitted  to  exhibit  an 
inventory  of  the  personal  estate  only  of  the  said  intestate, 
and  that  the  court  of  probates  do  not  presume  to  reject 
such  inventory  because  it  does  not  contain  the  real  estate 
of  the  said  intestate.  And  his  Majesty  doth  hereby  further 
order,  that  the  aforementioned  sentence  of  the  22d  of 
March,  172|,  vacating  the  said  letters  of  administration 
granted  to  the  petitioner,  and  granting  administration  to 
the  said  Thomas  and  Anne  Lechmere,  be  also  reversed  and 
set  aside  ;  and  that  the  said  letters  of  administration,  so 
granted  to  Thomas  Lechmere  and  Anne,  his  wife,  be  called 
in  and  vacated  ;  and  that  the  said  inventory  of  the  said 
real  estate,  exhibited  by  the  said  Thomas  Lechmere  and 
Anne  his  wife,  be  vacated  ;  and  that  the  said  order  of  the 
29th  of  April,  1726,  approving  of  the  said  inventory  and 
ordering  the  same  to  be  recorded,  be  discharged  and  set 
aside;  and  that  the  original  letters  of  administration 
granted  to  the  petitioner  be,  and  they  are  hereby,  estab- 
lished and  ordered  to  stand  ;  and  that  all  such  costs  as  the 
petitioner  hath  paid  unto  the  said  Thomas  Lechmere  by  di- 
rections of  the  said  sentences,  all,  every,  or  any  of  them,  be 


382  APPENDICES. 

forthwith,  repaid  to  him  by  the  said  Thomas  Lechmere ; 
and  that  the  suit  brought  by  the  said  Thomas  Lechmere 
and  Anne  his  wife,  on  which  the  said  sentences  were  made, 
be  and  they  are  hereby  dismissed ;  and  that  all  acts  and 
proceedings  done  and  had  under  the  said  sentences,  all, 
every,  or  any  of  them,  or  by  virtue  or  pretence  thereof,  be 
and  they  are  hereby  discharged  and  set  aside,  and  declared 
null  and  void.  And  his  Majesty  is  further  pleased  to  de- 
clare, that  the  aforementioned  act  of  Assembly,  passed 
in  May,  1726,  empowering  the  said  Thomas  Lechmere  to 
sell  the  said  lands,  is  null  and  void  ;  and  also  that  the  said 
order  made  by  the  said  superior  court,  bearing  date  the 
27th  of  September,  1726,  pursuant  to  the  said  act  of  as- 
sembly, allowing  the  said  Lechmere  to  sell  of  the  said  real 
estate  to  the  value  of  ninety  pounds  current  money  there  for 
his  charges,  and  three  hundred  and  eighteen  pounds  silver 
money,  is  likewise  null  and  void ;  and  the  said  act  of  As- 
sembly and  order  of  the  said  superior  court  are  accordingly 
hereby  declared  null  and  void,  and  of  no  force  or  effect 
whatever. 

And  his  Majesty  doth  hereby  likewise  further  order,  that 
the  petitioner  be  immediately  restored  and  put  into  the  full, 
peaceable  and  quiet  possession  of  all  such  parts  of  the  said 
real  estate  as  may  have  been  taken  from  him,  under  pre- 
tence of,  or  by  virtue  or  colour  of  the  said  sentence,  orders, 
acts,  and  proceedings,  or  any  of  them ;  and  that  the  said 
Thomas  Lechmere  do  account  for  and  pay  to  the  said  pe- 
titioner the  rents  and  profits  thereof,  and  of  every  part 
thereof,  received  by  him  or  any  one  under  him,  for  and 
during  the  time  of  such  his  unjust  detention  thereof. 

And  the  Governour  and  Company  of  his  Majesty's  Colony 
of  Connecticut  for  the  time  being,  and  all  other  officers  and 
persons  whatsoever,  whom  it  may  concern,  are  to  take 
notice  of  his  Majesty's  royal  pleasure  hereby  signified,  and 
yield  due  obedience  to  every  particular  part  thereof,  as 
they  will  answer  the  contrary  at  their  peril.  * 

Edward  Southwell. 

*Tbe  Public  Records  of  the  Colony  of  Connecticut,  &c.,Yol.  vii,  pp.  571-579 


AITENDICES.  383 


APPENDIX  No.  5. 

(See  Page  213.) 

Of  the  relation  of  judicial  power  to  unconstitutional 
Legislaiion  according  to  the  constitution  of  the  Can- 
adian Dominion. 

In  connection  with  the  subject,  it  will  be  useful  to  con- 
sider the  present  constitution  of  the  Canadian  dominion  or 
union  of  colonial  provinces.  It  dates  from  1867,  being  the 
act  of  the  parliament  of  Great  Britain,  known  as  ' '  the 
British  North  America  Act,  1867."  This  instrument  is 
thus  both  imperial  legislation  and  a  colonial  constitution. 
The  legal  results  of  thirteen  years  of  constitutional  history 
are  exhibited  in  a  valuable  work  by  Mr.  Doutre,  Q.  C,  of 
Montreal.     It  is  entitled : 

''Constitution  of  Canada.  The  British  North  America 
*' Act,  1867;  its  Interpretation,  etc.,  by  Joseph  Doutre,  Q. 
''C,  of  the  Montreal  Bar.     (Montreal,  1880)." 

The  following  extracts  from  the  preface  are  of  great  in- 
terest to  common  law  jurists  in  all  parts  of  the  world. 

''The  design  of  this  work  is  not  to  be  a  commentary  upon 
' '  the  text  of  the  Federal  compact,  but,  to  bring  together, 
"by  the  side  of  the  text,  the  decisions  of  the  courts,  with 
"the  dicta  of  judges  and  statesmen;  and  to  discover  the 
"principles  which  will  aid  those  engaged  in  framing  fed- 
"eral  or  provincial  laws,  and  the  legal  profession  generally 
"in  the  interpretation  of  the  constitution  of  the  country. 

'' Premous  to  ^  Hie  British  North  America  Act,  1867,^ 
^^  the  provincial  courts  did  not  consider  the g  possessed  the 
''''power  of  enquiring  and  deciding  whether  the  laws  of 
'''their  respective  legislatures  icere  constitutional  or  not. 
'''Occasional  attempts  were  made  to  test  the  validity  of 
"statutes.,  hut  they  were  ineffectual  in  their  results.  It 
'''has  been. and  is  quite  different  under  the  Federal  act. 

"  The  Supreme  Court  of  Canada  and  the  privy  council  in 
"England,  have  both  concurred  in  recognizing  the  right, 


384  APPENDICES. 

'  assumed  by  the  provincial  courts  of  original  and  appellate 
'  jurisdiction,  to  pass  upon  the  constitutionality  of  the  laws 
*  enacted  by  the  provincial  legislatures  and  the  Parlia- 
'  ment  of  Canada.  This  was  anticipated  by  the  framers  of 
'  the  act,  as  appears  by  the  debates  in  the  House  of  Com- 
'  mons. 

''On  the  4th  of  March,  1867,  when  the  bill  was  under 
'discussion,  in  the  Imperial  Parliament,  Mr.  Card  well 
'said:  'As  matters  now  stand,  if  the  Legislatures  of 
'Canada  acted  ultra  mres^  the  question  would  first  be 
'  raised  in  the  colonial  law  courts,  and  would  ultimately 
'be  settled  by  the  privy  council  at  home.' 

"Important  decisions  of  the  privy  council,  of  the  Su- 
'preme  Court  of  Canada,  and  of  the  various  provincial 
'  courts,  have  been  already  reported,  pronouncing  upon  the 
'validity  of  the  Dominion  and  Provincial  statute  laws, 
'  and,  on  many  points  settling  the  principles  that  should 
'  be  applied  in  the  construction  of  the  confederation  act, 
'  and  defining  the  limit  and  scope  of  Federal  and  pro- 
'  vincial  legislation. 

"  It  may  be  thought  by  some,  inadvisable,  to  have  noted 
'  so  many  decisions  of  the  Federal  Court  of  the  United 
'  States,  but  it  will  be  remarked,  how  frequently  our  judges 
'  have  been  compelled,  in  the  absence  of  other  precedents, 
'  to  look  to  the  decisions  of  the  highest  court  of  that  Con- 
'  f ederacy  ;  for,  that  Republic  also  consists  of  a  Federal 
'  Union  of  separate  sovereign  States  with  a  written  consti- 
'  tution  prescribing  the  sphere  of  action  of  the  central  gov- 
'  ernment  and  of  the  local  governments  ;  and  this  neces- 
'sarily  required  continual  appeals  to  the  judiciary  to 
'  define,  determine  and  settle,  the  line  of  demarkation 
'  between  these  two  jurisdictions.  Several  cases  have  been 
'  reported  more  at  length  than  many  may,  at  first  sight, 
'  deem  expedient  or  desirable  for  a  work  of  this  kind  ; 
'but  it  must  be  borne  in  mind  that  these  are  recent  and 
'  important  cases,  involving  many  issues  of  great  moment, 
'which  have  been  discussed  with  great  ability  by  the 
'  judges  of  the  court  of  last  resort  in  this  Dominion. 


APPENDICES.  385 

"But,  for  those  who  do  not  lose  sight  of  the  fact  that  we 
*' are  on  the  threshold  of  a  new  system  of  national  exist- 
"  ence,  and  from  want  of  an  experience  that  time  alone  can 
**give,  are  deprived  of  any  great  number  of  judicial  de- 
*'cisions,  no  apology  will  be  necessary. 

'^The  Quebec  resolutions  of  1864,  and  the  Constitution  of 
"the  United  States  have  been  added,  for  the  reason,  that  a 
"ready  reference  to  them  is  useful,  if  not  necessary,  in  the 
"study  of  the  constitutional  act  of  Canada." 


APPENDIX  No.  6. 

(See  page  259.) 

Letter  of  Richard  Dohhs  Spaighi  to  James  Iredell. 
Philadelphia,  August^  lUh^  178T. 

Dear  Sir:  *  *  *  The  late  determination  of  our  judges 
at  Newbern,  must,  in  my  opinion,  produce  the  most  serious 
reflections  in  the  breast  of  every  thinking  man,  and  of 
every  well-wisher  to  his  country.  It  cannot  be  denied,  but 
that  the  Assembly  have  passed  laws  unjust  in  themselves, 
and  militating  in  their  principles  against  the  Constitution, 
in.  more  instances  than  one,  and  in  my  opinion  of  a  more 
alarming  and  destructive  nature  than  the  one  which  the 
judges,  by  their  own  authority,  thought  proper  to  set  aside 
and  delare  void.  The  laws  I  allude  to  are  the  tender  laws, 
and  the  laws  for  increasing  the  jurisdiction  of  the  justices 
of  the  peace  out  of  court ;  the  latter  they  have  allowed  to 
operate  without  censure  or  opposition ;  the  former  they 
have  openly  and  avowedly  supported,  to  the  great  disgrace 
of  their  characters.  I  do  not  pretend  to  vindicate  the  law, 
which  has  been  the  subject  of  controversy  ;  it  is  immaterial 
what  law  they  have  declared  void  ;  it  is  their  usurpation 
of  the  authority  to  do  it,  that  I  complain  of,  as  I  do  most 
positively  deny  that  they  have  any  such  power ;  nor  can 
they  find  anything  in  the  Constitution,  either  directly  or 
impliedly,  that  will  support  them,  or  give  them  any  color 
of  right  to  exercise  that  authority.  Besides,  it  would  have 
25  C. 


*SS6  APPENDICES. 

been  absurd,  and  contrary  to  the  practice  of  all  the  world, 
had  the  Constitution  vested  such  powers  in  them,  as  they 
would  have  operated  as  an  absolute  negative  on  the  pro- 
ceedings of  the  legislature,  which  no  judiciary  ought  ever 
to  possess,  and  the  State,  instead  of  being  governed  by  the 
representatives  in  General  Assembly  would  be  subject  to 
the  will  of  three  individuals,  who  united  in  their  own  per- 
sons the  legislative  and  judiciary  powers,  which  no  monarch 
in  Europe  enjoys,  and  which  would  be  more  despotic  than 
the  Roman  Decemvirate,  and  equally  insufferable.  If  they 
possessea  the  power  what  check  or  control  would  there  be 
to  their  proceedings?  or  who  is  there  to  take  the  same  lib- 
>erty  with  them  that  they  have  taken  with  the  legislature, 
and  declare  their  opinions  to  be  erroneous  ?  •  None  that  I 
know  of.  Ill  consequence  of  which,  whenever  the  judges 
should  become  corrupt,  they  might  at  pleasure  set  aside 
every  law,  however  just  or  consistent  with  the  Constitution, 
to  answer  their  designs ;  and  the  persons  and  property  of 
every  individual  would  be  completely  at  their  disposal. 
Many  instances  might  be  brought  to  show  the  absurdity 
and  impropriety  of  such  a  power  being  lodged  with  the 
judges. 

It  must  be  acknowledged  that  our  Constitution,  unfortu- 
nately, has  not  provided  a  sufficient  check  to  prevent  the 
intemperate  and  unjust  proceedings  of  our  legislature, 
though  such  a  check  would  be  very  beneficial,  and,  I  think, 
absolutely  necessary  to  our  well-being ;  the  only  one  that  I 
know  of,  is  the  annual  election,  which,  by  leaving  out  such 
members  as  have  supported  improper  measures,  will  in  some 
degree  remedy,  though  it  cannot  prevent,  such  evils  as  may 
arise.  I  should  not  have  intruded  this  subject  upon  you,  but 
as  it  must  certainly  undergo  a  public  discussion,  I  wish  -to 
know  what  is  the  general  opinion  on  that  transaction.    "^    * 

Richard  Dobbs  Spaigiit. 

■*Life  and  Correspondence  of  James  Iredell,  by  G.  J.  McEee,  Vol.  2  pp.  169-70. 


APPENDICES.  387 


APPENDIX  No.  7. 

(See  Page  283.) 

Wednesday,  March  21,  1787. 

Congress  assembled  :     Present  as  yesterday. 

On  the  report  of  the  Secretary  of  the  United  States  for 
the  department  of  foreign  affairs,  to  whom  was  referred  a 
letter  of  4th  March,  1786,  from  Mr.  J.  Adams,  minister 
plenipotentiary  of  tlie  United  States  of  America  at  the 
court  of  London,  together  with  the  memorial  of  the  said 
minister,  dated  the  30th  November,  1785,  and  presented  by 
him  on  the  8th  of  December  following,  to  his  Britannic 
Majesty' s  Secretary  of  State ;  and  the  answer  received  by 
Mr.  Adams  to  the  said  memorial,  and  contained  in  a  letter 
from  the  said  Secretary  of  State,  dated  at  ''  St.  James's, 
February  28,  1786,"  and  other  papers  accompanying  the 
same: 

Congress  unanimously  agreed  to  the  following  resolutions : 

JResolved,  That  the  Legislatures  of  the  several  states  can- 
not of  right  pass  any  act  or  acts,  for  interpreting,  explain*- 
ing,  or  construing  a  national  treaty  or  any  part  or  clause 
of  it ;  nor  for  restraining,  limiting  or  in  any  manner  im- 
peding, retarding  or  counteracting  \he  operation  and  exe- 
cution of  the  same,  for  that  on  being  constitutionally  made, 
ratified  and  published,  they  become  in  virtue  of  the  con- 
federation, part  of  the  law  of  the  land,  and  are  not  only 
independent  of  the  will  and  power  of  such  legislatures, 
but  also  binding  and  obligatory  on  them. 

Resolved,  That  all  such  acts  or  parts  of  acts  as  may  be 
now  existing  in  any  of  the  States,  repugnant  to  the  treaty 
of  peace,  ought  to  be  forthwith  repealed,  as  well  to  prevent 
their  continuing  to  be  regarded  as  violations  of  that  treaty, 
as  to  avoid  the  disagreeable  necessity  there  might  otherwise 
be  of  raising  and  discussing  questions  touching  their  val- 
idity and  obligation. 


888  '  APPENDICES. 

Besolved^  That  it  be  recommended  to  the  several  States  to 
make  such  repeal  rather  by  describing  than  reciting  the  said 
acts,  and  for  that  purpose  to  pass  an  act  declaring  in  gen- 
eral terms,  that  all  such  acts  and  parts  of  acts,  repugnant 
to  the  treaty  of  peace  between  the  United  States  and  his 
Britannic  Majesty,  or  any  article  thereof,  shall  be,  and 
thereby  are  repealed,  and  that  the  courts  of  law  and  equity 
in  all  causes  and  questions  cognizable  by  them  respectively, 
and  arising  from  or  touching  the  said  treaty,  shall  decide 
and  adjudge  according  to  the  true  intent  and  meaning  of 
the  same,  anything  in  the  said  acts  or  parts  of  acts  to  the 
contrary  thereof  in  anywise  notwithstanding.  "^ 

Friday,  April  13,  1787. 

Congress  Assembled :  Present,  Massachusetts,  Rhode 
Island,  Connecticut,  New  York,  Pennsylvania,  Virginia, 
North  Carolina  and  Georgia ;  and  from  New  Jersey,  Mr. 
Clark,  from  Delaware,  Mr.  Kearney,  and  from  South  Caro- 
lina, Mr.  Huger. 

The  secretary  for  foreign  affairs,  having  in  pursuance  of 
an  order  of  Congress,  reported  the  draught  of  a  letter  to 
the  states  to  accompany  the  resolutions  passed  the  21st  day 
of  March,  1787,  the  same  was  taken  into  consideration  and 
unanimously  agreed  to  as  follows : 

Sir  :  Our  secretary  for  foreign  affairs  has  transmitted  to 
you  copies  of  a  letter  to  him,  from  our  minister  at  the  court 
of  London,  of  the  4th  day  of  March,  1786,  and  of  the  papers 
mentioned  to  have  been  enclosed  with  it. 

We  have  deliberately  and  dispassionately  examined  and 
considered  the  several  facts  and  matters  urged  by  Britain, 
as  infractions  of  the  treaty  of  peace  on  the  part  of  America, 
and  we  regret  that  in  some  of  the  states  too  little  attention 
appears  to  have  been  paid  to  the  public  faith  pledged  by 
that  treaty. 

Not  only  the  obvious  dictates  of  religion,  morality  and 
national  honor,  but  also  the  first  principles  of  good  policy, 
demand  a  candid  and  punctual  compliance  with  engage- 
ments constitutionally  and  fairly  made. 

"•^Journals  of  Congress,  ed.  1801,  Vol.  xii,  pp.  23-4. 


APPENDICES.  389 

Our  national  constitution  having  committed  to  us  the 
management  of  the  national  concerns  with  foreign  States 
and  powers,  it  is  our  duty  to  take  care  that  all  the  rights 
which  they  ought  to  enjoy  within  our  jurisdiction  by  the 
laws  of  nations  and  the  faith  of  treaties,  remain  inviolate. 
And  it  is  also  our  duty  to  provide  that  the  essential  inter- 
ests and  peace  of  the  whole  confederacy  be  not  impaired  or 
endangered  by  deviations  from  the  line  of  public  faith,  into 
which  any  of  its  members  may  from  whatever  cause  be  un- 
advisedly drawn. 

Let  it  be  remembered  that  the  Thirteen  Independent  Sov- 
ereign States  have,  by  express  delegation  of  power,  formed 
and  vested  in  us  a  general,  though  limited,  sovereignty,  for 
the  general  and  national  purposes  specified  in  the  confeder- 
ation. In  this  sovereignty  they  cannot  severally  partici- 
pate (except  by  their  delegates)  nor  with  it  have  concur- 
rent jurisdiction  ;  for  the  ninth  article  of  the  confederation 
most  expressly  conveys  to  us  the  sole  and  exclusive  right 
and  power  of  determining  on  war  and  peace,  and  of  enter- 
ing into  treaties  and  alliances,  &c. 

When,  therefore,  a  treaty  is  constitutionally  made,  ratified 
and  published  by  us,  it  immediately  becomes  binding  on 
the  whole  nation,  and  superadded  to  the  laws  of  the  land, 
without  the  intervention  of  State  legislatures.  Treaties 
derive  their  obligation  from  being  compacts  between  the 
sovereign  of  this  and  the  sovereign  of  another  nation;  whereas 
laws  or  statutes  derive  their  force  from  being  the  acts  of  a 
legislature  competent  to  the  passing  of  them.  Hence  it  is 
clear  that  treaties  must  be  implicitly  received  and  observed 
by  every  member  of  the  nation ;  for  as  State  legislatures 
are  not  competent  to  the  making  of  such  compacts  or  treat- 
ies, so  neither  are  they  competent  in  that  capacity,  authori- 
tatively to  decide  on  or  ascertain  the  construction  and  sense 
of  them.  When  doubts  arise  respecting  the  construction  of 
State  laws,  it  is  not  unusual  nor  improper  for  the  State 
legislatures,  by  explanatory  or  declaratory  acts,  to  remove 
those  doubts.  But,  the  case  between  laws  and  compacts  or 
treaties  is  in  this  widely  different ;  for  when  doubts  arise 
respecting  the  sense  and  meaning  of  a  treaty,  they  are  so 


390  APPENDICES. 

far  from  being  cognizable  by  a  State  legislature,  that  the 
United  States  in  Congress  assembled,  have  no  authority  to 
settle  and  determine  them  ;  for  as  the  legislature  only, 
which  constitutionally  passes  a  law,  has  power  to  revise 
and  amend  it,  so  the  sovereigns  only,  who  are  parties  to  the 
treaty,  have  power  by  mutual  consent  and  posterior  articles, 
to  correct  or  explain  it. 

In  cases  between  individuals,  all  doubts  respecting  the 
meaning  of  a  treaty,  like  all  doubts  respecting  the  meaning 
of  a  law,  are  in  the  first  instance  mere  judicial  questions, 
and  are  to  be  heard  and  decided  in  the  courts  of  justice 
having  cognizance  of  the  causes  in  which  they  arise,  and 
whose  duty  it  is  to  determine  them  according  to  the  rules 
and  maxims  established  by  the  laws  of  nations  for  the  in- 
terpretation of  treaties.  From  these  principles  it  follows 
of  necessary  consequence,  that  no  individual  state  has  a 
right  by  legislative  acts  to  decide  and  point  out  the  sense  in 
which  their  particular  citizens  and  courts  shall  understand 
this  or  that  article  of  a  treaty. 

It  is  evident  that  a  contrary  doctrine  would  not  only 
militate  against  the  common  and  established  maxims  and 
ideas  relative  to  this  subject,  but  would  prove  no  less  in- 
convenient in  practice  than  it  is  irrational  in  theory  ;  for  in 
that  case  the  same  article  of  the  same  treaty  might  by  law 
be  made  to  mean  one  thing  in  New  Hampshire,  another 
thing  in  New  York,  and  neither  the  one  nor  the  other  of 
them  in  G-eorgia. 

How  far  such  legislative  acts  would  be  valid  and  obliga- 
tory even  within  the  limits  of  the  State  passing  them,  is  a 
question  which  we  hope  never  to  have  occasion  to  discuss. 
Certain,  however,  it  is  that  such  acts  cannot  bind  either  of 
the  contracting  sovereigns,  and  consequently  cannot  be 
obligatory  on  their  respective  nations. 

But  if  treaties  and  every  article  in  them,  be  (as  they  are 
and  ought  to  be)  binding  on  the  whole  nation,  if  individual 
States  have  no  right  to  accept  some  articles  and  reject  others, 
and  if  the  impropriety  of  State  acts  to  interpret  and  decide 
the  sense  and  construction  of  them,  be  apparent,  still  more 
manifest  must  be  the  impropriety  of  State  acts  to  control 


APPENDICES.  391 

delay  or  modify  the  operation  and  execution    of    these 
national  compacts. 

When  it  is  considered  that  the  several  States  assembled 
by  their  delegates  in  Congress,  have  express  power  to  form 
treaties,  surely  the  treaties  so  formed  are  not  afterwards  to 
be  subject  to  such  alterations  as  this  or  that  State  legisla- 
ture may  think  expedient  to  make,  and  that  too  without 
the  consent  of  either  of  the  parties  to  it ;  that  is  in  the  pres- 
ent case  without  the  consent  of  all  the  United  States,  who 
collectively  are  parties  to  this  treaty  on  the  one  side,  and 
his  Britannic  Majesty  on  the  other.  Were  the  legislatures 
to  possess  and  to  exercise  such  power,  we  should  soon  be 
involved  as  a  nation,  in  anarchy  and  confusion  at  home, . 
and  in  disputes  which  would  probably  terminate  in  hostili- 
ties and  war  with  the  nations  with  whom  we  may  have 
formed  treaties.  Instances  would  then  be  frequent  of  trea- 
ties fully  executed  in  one  State  and  only  partly  executed 
in  another  ;  and  of  the  same  article  being  executed  in  one 
manner  in  one  State,  and  in  a  different  manner,  or  not  at 
all  in  another  State.  History  furnishes  no  precedent  of  such 
liberties  taken  with  treaties  under  form  of  law  in  any  nation. 

Contracts  between  nations,  like  contracts  between  indi- 
viduals, should  be  faithfully  executed,  even  though  the 
sword  in  one  case  and  the  law  in  the  other,  did  not  compel 
it.  Honest  nations,  like  honest  men,  require  no  constraint  to 
do  justice  ;  and  though  impunity  and  the  necessity  of  af- 
fairs may  sometimes  afford  temptations  to  pare  down  con- 
tracts to  the  measure  of  convenience,  yet  it  is  ever  done, 
but  at  the  expense  of  that  esteem,  and  confidence  and  credit 
which  are  of  infinitely  more  worth  than  all  the  momentary 
advantages  which  such  expedients  can  extort. 

Bat  although  contracting  nations  cannot,  like  individ- 
uals, avail  themselves  of  courts  of  justice  to  compel  perfor- 
mance of  contracts  ;  yet  an  appeal  to  Heaven  and  to  arms 
is  always  in  their  power,  and  often  in  their  inclination. 

But  it  is  their  duty  to  take  care  that  they  neVer  lead  their 
people  to  make  and  support  such  appeals,  unless  the  sin- 
cerity and  propriety  of  their  conduct  affords  them  good 


392  APPENDICES. 

reason  to  rely  with  coafidence  on  the  justice  and  protection 
of  Heaven. 

Thus  much  we  think  it  useful  to  observe,  in  order  to  ex- 
plain the  principles  on  which  we  have  unanimously  come 
to  the  following  resolution,  viz : 

'  ^ Resolved^  That  the  legislatures  of  the  several  States  can- 
not of  right  pass  any  act  or  acts  for  interpreting,  explaining 
or  construing  a  national  treaty,  or  any  part  or  clause  of  it, 
nor  for  restraining,  limiting  or  in  any  manner  impeding, 
retarding  or  counteracting  the  operatien  and  execution  of 
the  same ;  for  that  on  being  constitutionally  made,  ratified 
and  published,  they  become  in  virtue  of  the  confederation 
part  of  the  law  of  the  land,  and  are  not  only  independent 
of  the  will  and  power  of  such  legislatures,  but  also  binding 
and  obligatory  on  them." 

As  the  treaty  of  peace,  so  far  as  it  respects  the  matters 
and  things  provided  for  in  it,  is  a  law  to  the  United  States 
which  cannot  by  all  or  any  of  tliem  be  altered  or  changed, 
all  State  acts  establishing  provisions  relative  to  the  same  ob- 
jects which  are  incomx3atible  with  it,  must  in  every  point  of 
view  be  imi3roper.  Such  acts  do  nevertheless  exist ;  but 
we  do  not  think  it  necessary  eitlier  to  enumerate  them  par- 
ticularly, or  to  make  them  severally  the  subjects  of  discus- 
sion. It  appears  to  us  sufficient  to  observe  and  insist,  that 
the  treaty  ought  to  have  free  course  in  its  oj)eration  and 
execution,  and  that  all  obstacles  interposed  by  State  acts  be 
removed.  We  mean  to  act  with  the  most  scrupulous  re- 
gard to  justice  and  candour  towards  Great  Britain,  and  with 
an  equal  degree  of  delicacy,  moderation  and  decision  to- 
wards the  States  who  have  given  occasion  to  these  discus- 
sions. 

For  these  reasons  we  have  in  general  terms, 

'^  Resolved.  That  all  such  acts  or  parts  ot  acts  as  may  be 
now  existing  in  any  of  the  States,  rei)ugnant  to  the  treaty 
of  peace,  ought  to  be  f ortiiwith  repealed ;  as  well  to  pre- 
vent their  continuing  to  be  regarded  as  violations  of  that 
treaty,  as  to  avoid  the  disagreeable  necessity  there  might 
otherwise  be  of  raising  and  discussing  questions  touching 
their  validity  and  obligation." 


APPENDICES.  ^^=52^       ^^3 

Although  this  resolution  applies  strictly  only  to  such  of 
the  States  as  have  passed  the  exceptionable  acts  alluded  to, 
yet  to  obviate  all  future  disputes  and  questions,  as  well  as 
to  remove  those  which  now  exist,  we  think  it  best  that  every 
State  without  exception  should  pass  a  law  on  the  subject. 
We  have  therefore, 

'  'Mesolved^  That  it  be  recommended  to  the  several  states  to 
make  such  repeal,  rather  by  describing  than  reciting  the 
said  acts  ;  and  for  that  purpose  to  pass  an  act  declaring  in 
general  terms  that  all  such  acts,  and  parts  of  acts  repug- 
nant to  the  treaty  of  peace  between  the  United  States  and 
his  Britannic  Majesty,  or  any  article  thereof,  shall  be,  and 
thereby  are  repealed  ;  and  that  the  courts  of  law  and  equity 
in  all  causes  and  questions  cognizable  by  them  respectively, 
and  arising  from  or  touching  the  said  treaty,  shall  decide 
and  adjudge  according  to  the  true  intent  and  meaning  of 
the  same,  anything  in  the  said  acts,  or  parts  of  acts,  to  the 
contrary  thereof  in  anywise  notwithstanding." 

Such  laws  would  answer  every  purpose,  and  be  easily 
formed.  The  more  they  were  of  the  like  tenor  throughout 
the  states  the  better,  they  mi^ht  each  recite  that. 

Whereas^  Certain  laws  or  statutes  made  and  passed  in  some 
of  the  United  States,  are  regarded  and  complained  of  as 
repugnant  to  the  treaty  of  peace  with  Great  Britain,  by 
reason  whereof  not  only  the  good  faith  of  the  United  States 
pledged  by  that  treaty,  has  been  drawn  into  question,  but 
their  essential  interests  under  that  treaty  greatly  affected. 
And  whereas^  justice  to  Great  Britain,  as  well  as  regard 
to  the  honor  and  interests  of  the  United  States,  require  that 
the  said  treaty  be  faithfully  executed,  and  that  all  obstacles 
thereto,  and  particularly  such  as  do  or  may  be  construed  to 
proceed  from  the  laws  of  this  State,  be  effectually  removed. 
Therefore, 

Be  it  enacted  by 
and  it  is  hereby  enacted  by  the  authority  of  the  same,  that 
such  of  the  acts  or  parts  of  acts  of  the  legislature  of  this 
State,  as  are  repugnant  to  the  treaty  of  peace  between  the 
United  States  and  his  Britannic  Majesty,  or  any.  article 
thereof,  shall  be,  and  hereby  are  repealed.    And  further, 


394  APPENDICES. 

that  the  courts  of  law  and  equity  within  this  State  be,  and 
they  hereby  are  directed  and  required  in  all  causes  and 
questions  cognizable  by  them  respectively,  and  arising  from 
or  touching  the  said  treaty,  to  decide  and  adjudge  accord- 
ing to  the  tenor,  true  intent  and  meaning  of  the  same,  any 
thing  in  the  said  acts,  or  parts  of  acts,  to  the  contrary 
thereof  in  anywise  notwithstanding. 

Such  a  general  law  would,  we  tiiink,  be  preferable  to  one 
that  should  minutely  enumerate  the  acts  and  clauses  in- 
tended to  be  rej)ealed,  because  omissions  might  accident- 
ally be  made  in  the  enumeration,  or  questions  might  arise, 
and  perhaps  not  be  satisfactorily  determined,  respecting  par- 
ticular acts  or  clauses,  about  which  contrary  opinions  may 
be  entertained.  By  repealing  in  general  terms  all  acts  and 
clauses  repugnant  to  the  treaty,  the  business  will  be  turned 
over  to  its  proper  department,  viz :  the  judicial,  and  the 
courts  of  law  will  find  no  difficulty  in  deciding  whether  any 
particular  act  or  clause  is  or  is  not  contrary  to  the  treaty. 
Besides,  when  it  is  considered  that  the  judges  in  general 
are  men  oi  character  and  learning,  and  feel  as  well  as  know 
the  obligations  of  office  and  the  value  of  reputation,  there 
is  no  reason  to  doubt  that  their  conduct  and  judgments  rela- 
tive to  these,  as  well  as  other  judicial  matters,  will  be  wise 
and  upright. 

Be  pleased,  sir,  to  lay  this  letter  before  the  legislature  of 
your  State,  without  delay.  We  flatter  ourselves  they  will 
concur  with  us  in  opinion,  that  candor  and  justice  are  as 
necessary  to  true  policy  as  they  are  to  sound  morality,  and 
that  tlie  most  honorable  way  of  delivering  ourselves  from 
the  embarrassment  of  mistakes,  is  fairly  to  correct  them. 
It  certainly  is  time  that  all  doubts  resjjecting  the  public 
faith  be  removed,  and  that  all  questions  and  difi'erences  be- 
tween us  and  Great  Britain  be  amicably  and  finally  settled. 
The  States  are  informed  of  the  reason  why  his  Britannic 
Majesty  still  continues  to  occupy  the  frontier  posts,  which 
by  the  treaty  he  agreed  to  evacuate ;  and  we  have-  the 
strongest  assurances  that  an  exact  comxjliance  with  the 
treaty  on  our  part,  shall  be  followed  by  a  punctual  perform- 
ance of  it  on  the  part  of  Great  Britain. 


APPENDICES.  395 

It  is  important  that  the  several  legislatures  should,  as 
soon  as  possible,  take  these  matters  into  consideration  ;  and 
we  request  the  favor  of  you  to  transmit  to  us  an  authenti- 
cated copy  of  such  acts  and  proceedings  of  the  legislature 
of  your  State,  as  may  take  place  on  the  subject  and  in  pur- 
suance of  this  letter. 

By  order  of  Congress. 

(Signed)  Arthuk  St.  Clair, 

President.* 

*  Journals  of  Congress,  ed.  1801, Vol.  xii,  pp.  32-36. 


(896) 


INDEX. 


ADMINISTRATIVE  LAW 

in  France,      102 

in  continental  countries  generally, 77 

ANTECEDENT  HISTORICAL 

of  sec.  2.  Ill  of  U.  S.  Constitution,      291-2 

of  sec.  2.  VI  of  U.  S.  Constitution, 272-83,  313-21 

APPEALS 

to  U.  S.  Supreme  Court  from  State  courts, 294-5,  342-50,  358 

from  inferior  federal  courts, 355-9 

to  King  in  council  from  Canada 213 

from  colonies, 208-13 

APPENDIX 

to  131  U.  S.  reports, 7 

ARAGON  JUSTICE  OF, ,    .       213 

ARTICLES  OF  CONFEDERATION 

part  of  "  law  of  the  land  "  of  each  State, 265 

obstacle  to  ratifying  Constitution, 302-4 

influence  on  federal  convention  of  conflicts  under,      310 

identical  law  recommended  to  all  States  by  Congress  of,  ....    .    274-5 
for  judicial  decisions  during,  holding  laws  void,  See  Unconstitu- 
tional Laws. 

AUTHENTIC  AND  DOCTRINAL 

interpretation  of  laws, 60-1 

BALDWIN,  JUDGE  HENRY. 

on  modes  of  interpreting  Constitution, 50 

BAN,  THE, 

in  the  German  Empire, • 351 

BANCROFT,  GEO., 

on  Juilliard  v.  Greenman, 25 

BA.YARD  V.  SINGLETON 

review  of, 263-6 

when  known  to  Framers'  convention, 266 


398  INDEX. 

BECKET  THOMAS 

contest  over  Constitutions  of  Clarendon,     , 137-9 

BENEFIT  OF  CLEEGY 

what  it  was, 138,  140 

resembles  immunity  of  federal  officials, 141-3 

BILLS  OF  CREDIT 

power  to  issue  claimed  for  U.  S.  government, 34-6 

BLACKSTONE 

his  tenth  rule  for  construing  statutes, 73-4,  172-8 

how  statesmen  of  1787  studied  him,      284 

BLUNTSCHLI 

on  judicial  power  as  to  unconstitutional  laws, 75-6 

BOWYER  SIR  GEORGE 

views  on  U.  S.  Constitution, 114^  117 

BREMEN 

provision  in,  to  protect  contractual  rights, 97,  100-2 

CANADA 

appeals  to  king  in  council  from,    .   .    .   .   , 213 

CANARY  WINE  TRADE 

opinion  of  crown  counsel  upon  case  of, 184 

CANON  LAW 

judicial  power  as  to  unconstitutional  laws  under, 121-33 

held  unconstitutional  laws  void,  .    .    , 122 

Genoese  laws  held  void  in  Rota  Romana  in  1648,  . 123-7 

papal  laws  held  void  in  Rota  Romana  in  1638, 129-33 

no  law  affecting  church  valid  by,  unless  approved, 127 

summary  of  doctrine  of  as  to  void  laws, 162-4 

well-acquired  rights  or  obligation  of  contracts  under, 131 

division  of  powers  under,  like  that  in  United  States, 126-7 

compared  with  U.  S.  law,  on  conflict  ot  laws, 162-4 

CANON  LAW  IN  ENGLAND 

generally, 134-62 

largely  excluded  by  common  law, 135-6 

doctrine  of  nullity  ot  lay  statutes  against  liberty  of  church,  .    .    .    .    136-9 

Constitutions  of  Clarendon  held  null, 137-43 

statutes  held  null  during  suppression  of  Templars, ,    .    143-7 

law  making  king  parson  held  void,      148-51 

statute  of  Carlisle  regulating  keeping  of  convent  seals  held  void,    .  153-60 
torture  in  proceedings  under,    .    ; 145-7 


INDEX.  399 

CARLISLE  STATUTE  OF 

*  held  void, 153-60,  176-8,  244 

first  law  held  void  in  common  law  court, 244 

"CASES  IN  LAW  AND  EQUITY" 

origin  of  form  of  expression,  . 291-2 

CHURCH 

conflicts  of  its  laws  with  those  of  State, 122-3:^ 

what  it  called  '"odious  statutes," 124 

no  law  affecting,  valid  by  canon  law,  unless  approved, 137 

recent  Prussian  statutes  held  void  by 128 

division  of  power  between  it  and  State,  resembles  division  in  U.  S.,       126 

CICERO 

upon  the  nullity  of  law  of  Clodius, 110 

CIVIL  LAW 

largely  excluded  from  England, 135 

authentic  and  doctrinal  interpretation  in, 60 

prudentes  in, 107 

rescripts  in, 106-9 

rogation  in, 110 

CLARENDON,  CONSTITUTIONS  OF 

case  of  the,      137-43 

contemptuously  spoken  of  by  Becket,      138-9 

finally  renounced  by  King 139 

consequence  of  nullity  of ;  benefit  of  clergy, 140-3 

CLERGY,  BENEFIT  OF 

origin  and  consequence  of, 138,  140-3 

resembles  immunity  of  federal  officials, 141-3 

CLODIUS 

Cicero  upon  nullity  of  law  of, 110 

COKE 

on  "  impertinent  to  be  observed," 154-6,  176-8 

on  void  Acts  of  Parliament,      ....... 173-8 

on  limitation  of  prerogative  in  legislating, 189 

COLONIES, 

relation  of  Acts  of  Parliament  to, 181-7 

modern  law  upon, 185-6 

crown  counsel's  decisions  on, 183-4,  199 

statute  of  7  and  8  William  III, 182-3 

28  and  29  Victoria, 185-6 

legislation  for  by  prerogative, 187-97 


400  IKDEX. 

COLOliJlEB— Continued. 

transmitting  and  non-transmitting, 205 

non-transmitting,  how  laws  of  annulled  by  King, 207-13 

laws  not  to  be  repugnant  to  English  laws, 198-203 

crown's  refusal  of  assent  to, 203 

no  j  udicial  cases  extant  holding  laws  void  for  repugnancy  to  laws 

of  England, 202-3,  211-3 

case  of  Winthrop  ?;.  Lechmere  "  appealed  home, " 208-13 

See  Appeals,  Canada. 

COMMISSION,  ELECTORAL  OF  1876-7, 340-1 

COMMON  LAW 

largely  excluded  canon  law  from  England, 135-6 

earliest  case  where  court  of,  held  law  void, '  .     153-60,  244 

judiciary  not  a  feeble  power  in, 103 

for  conflicts  with  canon  law,  see  CAJJfON  Law  in  England. 
See  JUDICIAEY. 

CONCORD  ATE  OF  1517 

pragmatic  sanction  of  Charles  VII,  contest  over,  settled  by,    ...         83 

CONFEDERATION,  ARTICLES  OF, 

part  of  "law  of  the  land  "    of  each  State, 265 

influence  on  federal  convention  of  conflicts  under, 310 

obstacle  to  ratifying  U.  S.  Constitution,     . 302-4 

identical  law  recommended  to  all  States  by  Congress  under,    .    .    .    274-5 
for  judicial  decisions  during,  holding  laws  void,  see  Unconstitu- 
tional Laws. 
See  Congress  of  Confederation. 

CONFLICT  OF  LAWS 

between  church  and  State, 122-3 

"odious  statutes"  of  State, 124 

between  rescripts  and  other  laws, 106-9 

between  canon  and  common  law, 153-60,  244 

between  the  German  Empire  and  States, 90-4 

between  the  constitution  and  laws  of  a  German  State, 94-104 

in  Switzerland  between  cantonal  and  federal  powers, 87-9 

in  England  between  acts  of  parliament  and  prerogative,    .     165-71,  190-6 

See  England. 

between  those  of  England  and  the  colonies,  .    ..*.......    198-203 

between  Union  and  States,  of  the  legislative  plan  of  settling,  .   .  312-3, 

329,  331-5 

of  the  judicial  plan  of  settling, 313-5 

how  text  of  judicial  plan  framed, 313-21 

federal  execution  against  States  proposed, 350-3 

compared  with  conflicts  under  canon  law,      162-4 

between  treaty  of  peace  and  laws  of  States,  see  Treaty  Of  Peace. 
See  Convention  Constitutional,  Judiciary,   Parliament  of 
Paris,  Pope. 


INDEX.  401 

CONGRESS  OF  CONFEDERATION 

identical  law  recommended  to  States  by, 274-5 

influence  of  its  text  on  U.  S.  Constitution,  .   .    .  274-83,  291-2,  313-21 

CONSTITUTION 

clauses  against  * 'omnibus  laws,"  similar  to  a  Roman  law,    ....       Ill 
written  and  unwritten,  difference  between  not  what  often  thought, 

83,  119,  231,  237 

of  modern  Europe  mostly  written, 75 

earliest  written  one, ,    ,         77 

of  the  German  empire,  see  German  Empiee, 
of  Switzerland,  see  Switzerland. 

CONSTITUTION  OF  THE  UNITED  STATES 

only  to  be  understood  by  learned  in  the  law, 4 

errors  made  in  quoting,  ^ 5 

different  schools  of  interpretation 49-50 

provides  expressly  for  judicial  power  to  hold  laws  null, 1,47-8 

influence  of  John  Dickinson  on, 348 

influence  of  G.  Morris  on, 306 

ratification,  difficulties  in  way  of, , 302-4 

to  be  by  conventions  of  people, 297,  303 

views  of,  held  by  Sir  George  Bowyer, 114,  117 

constructive  powers  laid  down  in  Juilliard  v.  Greenman, 27,  34 

supposititious  law  in  pursuance  of, 30,  36-9 

"this  constitution  and  the,"  meaning  of  in  judiciary  clause,    .    .    .        337 

"cases  in  law  and  equity,"  in  2.  Ill, 291-2 

"in  pursuance  of,"  in  2.  VL,  origin  of  in  G.  Morris 306-7 

"law  of  the  land,"  origin  of, 283,317-21 

non-ohstante  clause  in  2.  VI,  origin  of,      268-9 

judiciary  clause,  see  sec.  2.  Ill  infra. 

paragraph  5  sec.  l.II, 51 

sec.  2.  Ill,  historical  antecedent  of,      291-2 

history  of  formation, 336-42 

twin  text  with  2.  VI, 330 

sec.  2.  VI.,  historical  antecedents  of, 372-83,  313-21 

history  of  formation, 313-21 

twin  text  with  2.III, 330 

origin  of  non-ohstante  clause  in, 268-9 

rule  for  all  courts, 327-8 

amendment  XI  an  instance  ot  authentic  interpretation, 61 

amendment  XII, 61 

See  Convention  Constitutional,  Weitten  Constitution. 

CONSTITUTIONS  OF  CLARENDON 

contest  over, 137-43 

contemptuously  referred  to  by  Becket, 138-9 

finally  renounced  by  King, 139 

consequence  of  nullity  of ;  benefit  of  clergy, 140-3 

26  G. 


402  INDEX. 

CONSTITUTIONAL 

word  does  not  occur  in  U.  S,  Constitution, 51 

judiciary's  right  to  inquire  into, ,  see  Judiciary,  Unconstitu- 
tional Laws. 

CONSTITUTIONAL  LAW  OF  THE  UNITED  STATES  ' 

compared  with  canon  law  on  subject  of  conflicts, 162-4 

importance  of  Dred  Scott  case  in, 10 

CONSTRUCTION  OF  STATUTES 

Blackstone's  10th  rule  for, 73,  172-8 

CONSTRUCTIVE  POWERS 

as  laid  down  in  Juilliard  v.  Greenman, 27-30,  34-8 

supposititious  law  in  pursuance  of,  . 30-2,  38 

CONTINENTAL  COUNTRIES 

administrative  law  in, 77-102 

CONTRACTS 

obligation  of  in  Bremen, 97,  100-2 

in  canon  law, 131 

iS'ee  Well-Acquieed  Rights. 

CONVENT  SEALS 

statute  of  Carlisle,  regulating  keeping  of,  held  void,  .   .  ' 153-60 

CONVENTION  CONSTITUTIONAL  OF  1787 

how  influenced  by  treaty  of  peace,     274-84 

by  conflicts  under  confederation, 310 

by  recent  judicial  decisions, 266,368 

when  Bayard  v.  Singleton  became  known  to, 266-7 

judicial  decisions  holding  laws  void,  referred  to  in, 219 

two  principal  plans  presented, 311 

conflicts,  method  of  settling,  of  the  legislative  plan  of,  ...    .  312-3,  329, 

331-5 

of  the  judicial  plan  of, 313-5 

how  its  text  framed,  313-21 

judicial  power,  its  intentions  as  to, 293-359 

of  States  as  to  unconstitutional  federal  laws, 294,  298-308 

as  to  federally  unconstitutional  State  laws,     ....  294,  308-25 
of  U.  S.  as  to  federally  unconstitutional  State  laws,  .    .    .  294,  325-35 

as  to  unconstitutional  federal  laws, 294,  336-42 

appeals  to  U.  S.  Supreme  Court  from  State  court,  .  294-5,  342-50, 

358 

from  inferior  federal  courts, 355-9 

inferior  federal  courts,  debates  on, 344-8 

nature  of  jurisdiction  of, 355-9 

federal  execution  against  States  proposed, 350-3 

how  statesmen  in  had  studied  Blackstone, 284 


INDEX.  403 

CONVENTIONS 

of  the  people  to  ratify  U.  S.  Constitntion, 297,  303 

COOLEY,  THOS.  M., 

on  delegation  of  legislative  power, 121 

COUNCIL 

legislation  by  King  in,  for  colonies, 187-9 

appeals  to  King  in,  from  colonies, 208-13 

from  Canada, 213 

Winthrop  v.  Lechmere  in,  nature  of  its  decision, 211-3 

Pan- Anglican  in  London  in  1236, 158 

COURTS 

oftheinferior  U.  S., 326,344-8,356-7 

of  dative  and  native  jurisdiction, 356-7 

U.  S.  Supreme,  see  Supreme  Couet. 

of  the  States,  intentions  of  framers  as  to,  see  Convention  Con- 
stitutional. 

appeals  from  to  U.  S.  Supreme  Court, 342-50,  358 

for  laws  held  void  by,  during  confederation,  see  Unconstitu- 
tional Laws. 
See  Judicial  Decisions,  Judiciary,  Laws,  Unconstitutional 
Laws. 

CREDIT  BILLS  OF 

power  to  issue  claimed  for  U.  S.  government, 34-6 

CREED 

dispute  over  insertion  of  "^togwe"  in, 48 

CROWN 

refusal  of  assent  to  colonial  laws, 203 

legislative  negative  on  State  laws,  proposed  in  convention, 

taken  from, 329 

dispensing  power  of, 166-71 

law  making  King  parson  held  void, 148-51 

appeals  to,  in  council,  from*  colonies, 208-13 

from  Canada, 213 

See  Colonies,  Council. 

CROWN  COUNSEL 

decisions  on  acts  relating  to  colonies, 183-4,  199 

DATIVE 

jurisdiction  of  courts,     356-7 

DAVIS,  J.  C.  B., 

his  appendix  to  131  U.  S.  reports, 7 


404  INDEX. 

DECISIONS  JUDICIAL,  see  Judicial  Decisions. 

DELAWARE,  LOWER  COUNTIES  UPON, 206 

DICKINSON,  JOHN. 

influence  on  U.  S.  Constitution, , 348 

DISPENSING  POWER 

of  crown  before  1688, .   ^ 166-71 

judiciary,  holding  laws  null,  was  said  to  exercise, 252 

DIVISION  OF  GOVERNMENTAL  POWERS 

different  effect  attributed  to  in  France  and  United  States,    ....         78 
under  canon  law,  similar  to  that  in  United  States, 126-7 

DOCTRINAL,  AUTHENTIC  AND 

interpretation  of  laws, 60-1 

DRED  SCOTT  CASE 

importance  in  constitutional  history,      ,         10 

ECCLESIASTICAL  RIGHTS 

superior  to  common  law,  see  Canon  Law. 

ELECTORAL  COMMISSION  OF  1876-7,      340 

ENGLAND 

civil  law  largely  excluded  from, , 135 

earliest  judicial  case  holding  law  void, 153-60,  244 

canon  law  doctrine  of  nullity  of  lay  statutes  against  liberty  of 

church, , 136-9 

Constitutions  of  Clarendon  held  null, 137-43 

statutes  held  null  during  suppression  of  Templars, 143-7 

making  King  parson  held  null, ,   .  148-51 

of  Carlisle  regulating  keeping  of  convent  seals  held  void,  .   .    .  153-60 

against  torture  held  void, 145-7 

restricting  prerogative  before  1688  held  void, 165-71 

impossible  to  be  performed  void, 172-6 

void,  summary  of  law  as  to,  ....  ' 178-81,  214-5 

cases  where  prerogative  laws  held  void,     190-6 

dicisions  of  crown  counsel  on  acts  extending  to  colonies,   .   .   .  183-4,  199 
common  law  in,  see  Common  Law. 

EXECUTION  FEDERAL 

in  the  German  Empire, 351 

against  states  proposed, 350-3 

FEDERAL  CONVENTION,  see  Convention  Constitutional  op  1787. 

FEDERAL   COURTS,  see  Convention  Constitutional,    Infeeiob 
Courts  op  United  States,  Judiciaey,  Supeeme  Couet. 


INDEX.  405 

FEDERAL  EXECUTION 

in  the  German  Empire, 351 

against  states  proposed, 350-3 

FEDERAL  LAWS 

held  void  by  U.  S.  Supreme  Court, 8-22 

FEDERAL  OFFICIALS 

immunity  from  state  process  claimed  for,  like  benefit  of  clergy,  .    .    141-3 

FILIOQUE 

dispute  over  its  insertion  in  creed, 48 

FOREIGN  GOVERNMENTS 

usages  of  as  to  powers  claimed  here, 34-6 

FRAMERS'  CONVENTION,  see  Convention  Constitutional. 

FRANCE 

power  of  courts  as  to  void  laws, 76-85 

division  of  powers  in.  under  written  constitution,  held  to  curtail,  78 

regency  cases,    ....       79-81 

pragmatic  sanction  of  Charles  VII, 82 

parliament  of  Paris, 79-83 

administrative  law  in, 102 

GENOA 

law  of,  held  void  in  Rota  Romana  in  1648, 123-7 

GERMAN  EMPIRE 

administrative  law  in, 92,  102 

judicial  precedents  not  recognized, 92 

federal  execution  or  ban, 351 

Prussian  statutes  held  void  by  Pope, 128 

the  old  Imperial  Chamber,  and  its  powers  as  to  unconstitutional 

laws, 104-5 

unconstitutional  laws  of  state  in, 92-^5 

procedure  as  to  repeal, 92-3 

laws  of  state  superseded  by  those  of  empire, 94 

constitution  of, 91-105 

provision  in  Bremen  to  protect  contracts, 97,  100-3 

judiciary,  power  as  to  unconstitutional  laws  of  old  Bund 94 

powers  generally, 75,  94-103 

recent  case  holding  American  view, 95-9,  102-3 

this  case  overruled, 99-103 

GERMANE 

Roman  Senate  held  laws  void  because  subjects  not, Ill 


406  INDEX. 

GOVERNMENTAL     POWERS,   see   Division    of    Governmental 
Powers. 

HILDEBURN  C.  R., 

upon  the  lower  counties  upon  Delaware, 206 

HISTORICAL  ANTECEDENT 

of  sec.  2.  Ill  of  U.  S.  Constitution 291-2 

of  sec.  2.  VI  of  U.  S.  Constitution 272-83,313-21 

IDENTICAL  LAW 

recommended  to  States  by  Congress  of  Confederation. 274-5 

influence  of  its  text  on  Constitution, 274-83,  291-3,  313-21 

IMPAIRING  OBLIGATION  OF  CONTRACTS 

provision  against  in  Bremen, 97 

in  canon  law, 131 

IMPERIAL  CHAMBER 

in  old  German  Empire  and  its  power  as  to  unconstitutional  laws,    .    104-5 

IMPLIED  POWERS 

as  laid  down  in  Juilliard  v.  Greenman, 27,  34-8 

as  to  penal  laws, 37 

**  IMPOSSIBLE  TO  BE  PERFORMED"  . 154-6,160,176-8 

how  Trevett  v.  Weeden  connected  with, 244 

basis  of  decision  in  Rutgers  v.  Waddington, 231 

INFERIOR  COURTS  OF  U.  S., 326,  344-8,  356-7 

INTERPRETATION 

who  interprets  in  the  civil  law, 60 

authentic  and  doctrinal,      60 

instance  of  authentic  in  the  United  States, 61 

of  Constitution,  different  schools  of, 49-50 

IREDELL,  JAMES, 

counsel  in  Bayard  v.  Singleton, 251 

his  letter  of  an  elector,       253-8 

his  letter  to  Spaight, 259-63 

JUDICIAL  DECISIONS 

how  scope  of  grows, 40-1,  43 

none  extant  holding  colonial  laws  void  for  repugnancy  to  laws  of 

England, 202-3 

holding  laws  void,  review  of  cases  in  other  countries, 216-8 

earliest  in  court  of  common  law,      244 

early  cases  in  American  States, 220-2 

earliest  clear  American  case  under  unwritten  Constitution,  .  234-48, 

267-9 


INDEX.  407 

JUDICIAL  DECISIONS -Con/mwe^;. 

under  written  Constitution, 248-69 

Trevett  v.  Weeden  reviewed, 234-48 

Bayard  v.  Singleton,  reviewed, , 263-6 

Rutgers  r.  Waddington  reviewed, 223-34 

States  where  power  claimed  prior  to  federal  convention,  .    ,   .  219-23 

how  federal  convention  influenced  by, 266,  268 

Bluntschli  upon, 75-6 

in  canon  law  countries,  see  Canon  Law. 
in  Germany,  France,  &c,  see  German  Empiee,  France,  &c. 
for  laws  held  void  by,  see  Laws. 
See  Judiciary,  Jury,  Law,  Pope,  Unconstitutional  Laws. 
JUDICIAL  POWER 

how  regulated  in  early  French  Constitution, 77 

in  Switzerland, 84-9 

as  to  unconstitutional  laws,  Bluntschli  on, 75-6 

prohibited  in  Switzerland, 30,  86 

is  express  in  U.  S.  Constitution, 1 

generally  supposed  to  be  implied, 3,  52 

generally, 270-1 

supposititious  law  of  U.  S.  prohibiting, 36-8 

Mr.  McMurtrie's  doctrine  of, 32-4 

consequences  of  shown  by  supposititious  law, 30,  36-8 

See  Judicial  Decision, Law,  Unconstitutional  Laws. 

JUDICIAL  POWER  OF  THE  UNITED  STATES,  see  Judiciary. 
JUDICIARY 

does  not  interpret  in  civil  law, 60 

power  as  to  rescripts  in  Rome, 107-8,  109 

not  a  feeble  power  in  common  law  countries, ;    .    .        103 

in  continental  countries,  cannot  examine  legality  of  executive  acts,  102-3 

dative  and  native  jurisdiction  of,      356-7 

in  Electoral  Commission  of  1876-7, 340 

federal,  need  of  separate  urged  by  Madison, 344 

interior  courts  under,      344-8 

nature  of  their  jurisdiction, 356-7 

influence  of  decisions  on  federal  convention, 266,  268 

power  to  hold  laws  void,  did  Marshall  hold  is  expressly  given,  .    .  53^^  68-^0 
earliest  instance  of  its  calling  a  statute  void,   .......        157 

not  new  invention  in  America, 45,  127,  163,  216-8 

early  cases  in  Rota  Romana, 123-7,  129-33 

in  Switzerland  bound  by  all  laws 86-9 

in  ancient  France, • ...    76-85 

in  Germany, 75,  94-103 

recent  case  holding  American  view, 95-9,  102-3 

this  case  overruled, 99-103 

in  foreign  countries,  summary, 216-8 


408  INDEX. 

JVBICIARY— Continued. 

in  England,  laws  held  void  before  1688  as  against  prerogative,  165-71 

prerogative  laws  for  colonies  held  void, 190-6 

earliest  case  ia  common  law  court,      153-60,  244 

summary  as  to  law  upon  void  statutes, 178-81,  214-5 

for  cases  under  canon  law,  see  Canon  Law  and  CANON 
Law  in  England. 

early  cases  in  American  States, 220-2 

first  distinct  one,  under  unwritten  constituton,  ,    .     234-48,  267-9 

under  written  constitution, 248-69 

States  where  power  claimed  prior  to  federal  convention,    .  219-23 

Trevett  v.  Weeden  reviewed, 234-48 

Bayard  v.  Singleton  reviewed, ...    263-6 

Kutgers  v.  Waddington  reviewed, 223-34 

judges  displaced  for  exercising, 246,  298 

efforts  of  court  to  escape  necessity  of  decision, 249-50 

aaid  to  be  the  dispensing  power, < 252 

early  argument  in  favor  of  by  Iredell, 253-259 

how  lawyers  viewed  in  1787, 263 

proposed  to  use  for  prevention  of  violations  of  treaty  of  peace,      275 

relation  to  unconstitutional  laws  before  1787, 219-71 

supposititious  law  forbidding  its  inquiring  into  constitution- 
ality of  laws, 30-2,  38 

does  not  extend  to  political  rights,  ...       118 

functions  as  to  generally, 270-1 

/See  Convention  Constitutional,  Unconstitutional  Laws. 

JUDICIARY  CLAUSE, 

in  U.  S.  Constitution,  historical  antecedent, 291-2 

history  of  formation, 336-42 

twin  text  with  "supreme  law"  clause  (2.  VI), 330 

JUILLIARD  V.  GREENMAN, 

Mr.  McMurtrie  on, 25-7,  30-4,  43-4,  52-3 

its  doctrine  of  implied  powers, 27,  34-8 

climax  of  implication  in, 43 

JURY, 

early  laws  to  dispense  with  held  null, 222,  234-48,  248-67 

JUS  LEGUM, 

of  the  Roman  republic, 110-3 

lex  Caecilia  et  Didia  was  part  of, Ill 

JUSTICE  OF  ARAGON, * 218 

KING, 

See  Ceown. 


INDEX.  409 

LAW, 

identical,  recommended  to  States  by  Congress, 274-5 

influence  of  its  text  on  constitution, 274-83,  291-2,  313-21 

supposititious,  prohibiting  American  Courts  from  inquiring  into  con- 
stitutionality,     30-2,  38 

administrative  in  continental  countries, 77,  102 

who  interprets  in  civil  law, 60 

private,  comparable  with  rescripts, 133 

of  nations,  and  power  of  parliament,   .       180 

strong  presumption  against  intent  to  violate, 180,  228-9 

made  by  prerogative,  Coke  upon, 189 

in  Rome  made  upon  rogation, 110 

held  void  by  Roman  Senate,  because  subjects  not  germane,  ....       Ill 

of  Clodius,  Cicero  upon  nullity  of, 110 

impossible  to  be  performed, 172-6 

of  popes  held  void  in  1638  in  Rota  Romana, 129-33 

of  Genoa  held  void  in  1648  in  Rota  Romana, 123-7 

French  laws  held  void  by  Parliament  of  Paris, 79-83 

making  King  parson  held  void, 148-51 

against  liberty  of  church  held  void, 136-9 

regulating  keeping  of  convent  seals  held  void, 153-60 

against  torture  held  void, 148-51 

constitutions  of  Clarendon  held  void,     ...    , 137-43 

restricting  royal  prerogative  held  void, 165-71, 190-6 

recent  Prussian  held  void  by  church, 128 

use  of  word  "void"  in  regard  to, 157,244 

held  void  by  canon  law,  see  Canon  Law,  Canon  Law  in  Eng- 
land. 

"odious'' what  the  church  called, 124 

See  Judiciary,  Laws,  Unconstitutional  Laws. 

"  LAW  OF  THE  LAND  " 

origin  of  in  Constitution, 283 

history  of  the  words, 317-21 

means  law  of  each  State, 287-91,  321-4 

confederation  was  part  of  in  States, 265 

treaty  a  part  of, 284 

parts  of  not  repealable  by  statute, 285 

LAWS 

of  States  held  null  by  U.  S.  Supreme  Court, 22-3 

federal  held  null  by  U.  S.  Supreme  Court, 8-22 

See  Judiciary,  Law,  Unconstitutional  Laws. 

LAWYERS 

generally  supported  Bayard  v.  Singleton, 263 

LEGAL  TENDER  CASE 

See  Juilliaed  v.  Geeknman. 


410  INDEX. 

LEGISLATION 

by  prerogative,  Coke  upon, 189 

was  made  upon  rogation  in  Rome, 110 

of  Genoa  held  void  in  1648  in  Rota  Romana, 123-7 

of  popes  held  void  in  1638  in  Rota  Romana, 129-33 

See  Judiciary,  Jury,   Law,   Legislative,  Unconstitutional 
Laws. 

LEGISLATIVE 

power,  Vattelon,      ■ 119 

how  related  to  Roman  mandate,     120 

provisions  against  "  omnibus  laws,"       Ill 

powers  of  generally  in  continental  Europe, 75 

negative  on  State  laws,  proposed  in  convention,      312-3 

of  the  origin  of  plan, 331-5 

Madison  upon, 331 

LEX  CAECILIA  ET  DIDIA 

similar  to  our  provisions  against  *' omnibus  laws," Ill 

LEX  REGIA 

theory  of, 116 

LODGE,  H.  C, 

on  modes  of  interpreting  constitution, 50 

McMURTRIE,  R.  C, 

review  of  Juilliard  v.  Greenman,  ....  25-7,  30-4,  36-8,  43-4,  52-3 
MADISON,  JAMES, 

on  legislative  negative  of  State  laws, 331 

prescience  of, , 341 

MANDATE  IN  ROMAN  LAW, 114-8 

relation  to  our  doctrine  of  legislative  power, 118-21 

MARSHALL,  C.  J., 

reasoning  in  Marbury  v.  Madison, 54-67 

part  of,  how  similar  to  Varnum's  argument  in  Trevett  v. 

Weeden, 243 

argument  in  Ware  v.  Hylton  compared  with,   ....  53,  68-70 
views  in  Cohens  v.  Virginia, 349-50 

MASSACHUSETTS 

early  case  where  law  held  void  by  judges,     222 

MEIGS,  WILLIAM  M., 

article  on  early  cases  holding  laws  unconstitutional, 220-3 

MORRIS,  GOUVERNEUR, 

influence  on  Constitution, 306 


INDEX.  411 

NATIONS,  LAW  OF, 

presumption  against  intent  of  law  to  violate, 180,  228-9 

NATIVE  JURISDICTION  OF  COURTS, 356-7 

NEWBERN  CASE,  THE, 252 

NEW  JERSEY 

early  case  where  law  held  void  by  judges, 222 

NEW  YORK 

early  case  where  law's  validity  considered  by  judges, 223-34 

NON-OBSTANTE 

clause  of, 233,278-9 

whence  came  into  2.  VI  of  U.  S.  Constitution, 268-9 

NORTH  CAROLINA, 

earliest  case  where  law  held  null  under  written  constitution,  222-3,  248-69 

OBLIGATION  OF  CONTRACTS, 

in  Bremen  constitution, 97,  100-2 

in  canon  law, 131 

"ODIOUS  STATUTES," 

so-called  by  the  church, 124 

"OMNIBUS  LAWS," 

provision  against,  compared  with  lex  Caecilia  et  Didia, Ill 

PAPER  MONEY, 

law  as  to  held  void  in  Rhode  Island,     234-48 

PARIS,  PARLIAMENT  OF, 79-83 

PARLIAMENT, 

powers  of  modem, 72-4 

before  Reformation, .  148-80 

effect  of  Reformation  on, 160-1 

as  to  law  of  nations, 180 

summary  of  growth  of, 179,  214-5 

acts  of,  restricting  prerogative  before  1688, 165-71 

void,  Coke  upon, 173-8 

relating  to  colonies,  see  Colonies. 
of  Paris,  importance  of. 79-83 

PATTERSON,  WILLIAM, 

plan  of  Union  presented  in  convention, 311 

PENSION  LAW  OF  1792, 

provisions  of  unconstitutional,     .   .       . ,  8,  11-7 


S^l^f»^s^l• 


412  INDEX. 

PEOPLE, 

conventions  of  to  ratify  constitution, 297,  303 

POLITICAL  RIGHTS, 

not  a  subject  of  judicial  scrutiny, 118,  337 

POPE, 

recent  Prussian  statutes  held  void  by, 128 

legislation  of  held  void  in  Rota  Romana, 129 

contest  over  pragmatic  sanction  of  Charles  VII, 82 

See  Canon  Law,  Constitutions  of  Clarendon,  Templaes  Sup- 
pression OF. 

PRAGMATIC  SANCTION, 

of  Charles  VII,      82 

PRECEDENTS, 

judicial  not  recognized  in  Germany, 92 

PREROGATIVE, 

acts  of  parliament  restricting,  before  1688, 165-71 

legislation  for  colonies  by, 187-97 

cases  where  held  void, 190-6,  215 

Coke's  opinion  on  limitations  of, 189 

in  refusing  assent  to  colonial  laws, 203 

difference  between,  "at  home"  and  "abroad,"  .   .........    188-9 

PRIVATE  LAWS, 

comparable  with  rescripts, 133 

PRUSSIA, 

statutes  of,  recently  held  void  by  church, 128 

PRUDENTES, 

in  Roman  law, 107 

"PURSUANCE  OF,"  in  2.  VI  of  U.  S.  Constitution,  origin  from  G. 

Morris, 306-7 

RANDOLPH,  EDMUND, 

plan  of  Union  presented  by  in  convention, 311,  332 

RATIFICATION  OF  U.  S.  CONSTITUTION 

difficulties  in  way  of, 302-4 

by  conventions  of  people, 297,  303 

REFORMATION 

influence  of  on  powers  of  Parliament, 160-1 

REGENCY  CASES 

in  France,   , , 79-81 


INDEX.  413 

REPUGNANCY 

of  colonial  to  English  laws  forbidden, 198-203 

no  judicial  cases  extant  holding  laws  void  for, 202-3 

RESCRIPTS 

in  the  Roman  law, .  106-9 

power  of  prudentes  in  interpreting, 107-8 

in  later  civil  law, 132-3 

comparable  with  private  laws, 133 

RHODE  ISLAND 

has  first  case  where  law  held  void  under  unwritten  Constitution,    .  234-48 

RIGHTS,  WELL-ACQUIRED, 

in  law  of  Bremen, 97,  100-2 

ROGATION 

in  the  Roman  law, 110 

ROMAN  LAW, 105-21 

rogation  in, 110 

rescripts  in, 106-9 

prudentes,  power  of  interpreting, 107 

jus  legum  under  the  republic, 110-3 

mandate, 116 

connected  with  our  doctrine  of  legislate  power, 120 

lex  regia,  theory  of, 116 

lex  Caecilia  et  Didia,  and  our  provisions  against  *' omnibus"  laws,  111 

part  of  the  jus  legum^ Ill 

senate  held  laws  null  because  subjects  not  germane, Ill 

ROTA  ROMANA 

Genoese  legislation  held  void  by  in  1648, 133-7 

legislation  of  popes  held  void  by  in  1638, 129-33 

RUTGERS  V.  WADDINGTON, 223-34 

influence  on  federal  convention, 268 

.  suggested  the  nonobstante  clause  of  2.  VI, 268-9 

SEWARD,  WILLIAM  H., 59 

SPAIGHT,  R.  D., 

Iredell's  letter  to, 259-63 

STATE  COURTS 

appeals  from  to  U.  S.  Supreme  Court, 342-50,  358 

in  which  laws  held  void  before  1788, 219-23 

intention  of  framt-rs  as  to,  see  Convention  Constitutional. 

STATE  LAWS 

held  null  by  U.  S.  Supreme  Court, 22-3 


414  INDEX. 

STATUTE 

of  7  and  8  William  III,      182-3 

of  28  and  29  Victoria, • 185-6 

"odious,"  what  the  church  called, 124 

construction  of,  see  Blackstone. 
of  Carlisle,  see  Carlisle. 
See  Law,  Laws. 

STRANDED  SHIPS, 

statute  in  regard  to, 183 

SUPREME  COURT  OF  THE  UNITED  STATES, 

its  recent  doctrine  upon  constructive  powers, 27-30,  34-8 

appeals  to  from  state  courts, 294-5,  342-50,  358 

from  inferior  federal  courts, 355-9 

laws  of  states  held  null  by, 22-3 

laws  of  Congress  held  null  by, 8-22 

SUPREME  LAW  OF  THE  LAND,  see  Law  of  the  Land. 

SUSPENSION  OF  LAWS, 

by  crown  before  1688, 166-71 

judiciary  holding  laws  null  said  to  exercise, 252 

SWITZERLAND, 

^    federal  constitution, 84-9 

article  113  of, • 30,  86 

federal  tribunal  bound  by  all  laws, .   30,  86 

judicial  system  in, 85,  87-9 

influence  of  U.  S.  Constitution  on, 85 

TECHNICAL  TERMS, 

meaning  of,  easily  neglected, 4 

TEMPLARS  SUPPRESSION  OF, 

in  England, 143-7 

TORTURE, 

in  procedure  under  canon  law, 145-7 

TRADE,  CANARY  WINE, 184 

TREATY, 

part  of  law  of  land, 284-5,  289-90 

TREATY  OF  PEACE  WITH  GREAT  BRITAIN, 

influence  on  U.  S.  Constitution, 274-84 

state  violations  of,  led  to  proposal  of  identical  law, 274-6 

part  of  law  of  land, 289-90 

TREVETT  V.  WEEDEN, , 234-48 

judges  displaced  for  decision  in, 246 


INDEX.  416 

"UNCONSTITUTIONAL," 

does  not  occur  in  constitution, 61 

UNCONSTITUTIONAL  LAWS, 

Bluntschli  on  judiciary's  powers  as  to, 75-6 

supposititious  statute  prohibiting  our  courts  from  inquiring  into,  30-2,  38 

review  of  judiciary's  powers  in  other  countries, 216-8 

Roman  Senate  held  laws  void,  because  subjects  not  germane,    .    .        Ill 

earliest  judicial  decision  on,  in  courts  of  common  law, 244 

early  cases  in  American  states, 220-2 

earliest  distinct  American  case  under  unwritten  constitution,  234-48,  267-9 

under  written  constitution,    ....  248-69 

Trevett  v.  Weeden  reviewed, 334-48 

Bayard  v.  Singleton,  reviewed, ,    .    .    263-6 

Rutgers  v.  Waddington  reviewed,    ....    • 223-34 

states  where  power  claimed,  prior  to  federal  convention, 219-23 

how  federal  convention  influenced  by  judicial  decisions  T)n,     .    .   266,  268 

how  federal  convention  intended  to  control, 312-15,  329-35 

held  void  by  canon  law,  see  Canon  Law,  Canon  Law  in  England. 
in  Germany,  France,  &c,  see  GERMAN  Empire,  France,  &c. 
for  list  of,  of  States  and  of  Congress,  see  Laws. 
/See  Genoa,  Judiciary,  Jury. 

VARNUM,  JAMES  M., 

argument  in  Trevett  v.  Weeden, 236 

influence  in  Congress  of  his  knowledge  of  Trevett  v.  Weeden,    .   .        286 

VATTEL 

on  legislative  power, 119 

is  link  between  mandate  and  our  doctrine  of  legislative  power,  .    .        120 

VIRGINIA 

early  cases  where  judges  claimed  power  to  hold  laws  null,    ....    220-1 

VOID 

use  of  word  as  to  laws, 157,  244 

Coke  upon  void  Acts  of  Parliament, 173-8 

for  void  laws,  see  Unconstitutional  Laws. 

WELL-ACQUIRED  RIGHTS  * 

in  law  of  Bremen, 97,  100-2 

in  canon  law, 131 

WRITTEN  CONSTITUTION 

earliest  in  Europe, 77 

modern  European  are,  generally, 75 

used  in  France  to  curtail  judicial  power, 78 

and  unwritten,  difference  less  than  often  thought,  ...   83,  119,  231,  237 
meaning  of,  unalterable  by  use  or  non-use, 48-9 

WRITTEN  TEXT 

meaning  of  unalterable  by  use  or  non-use, 48-9 


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